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Full text of "Annual Report Workers' Compensation Appeals Tribunal 1994"

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ANNUAL REPORT 

1 994 




IF 

Ontario 



0h+. 

W.CAT 



Workers' Compensation 
Appeals Tribunal 






Tribunal d'appel 

des accidents du travail 



c 



ANNUAL REPOR 

1994 





Ontario 



Ontario Workers' Compensation Appeals Tribunal 

505 University Avenue, 7th Floor 

Toronto, Ontario 

M5G 1X4 



ISSN: 1181-6031 
© 1995 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



Contents 



INTRODUCTION v 

REPORT OF THE TRIBUNAL CHAIR 

THE TRIBUNAL'S PERFORMANCE 1 

THE IMPLICATIONS FOR THE TRIBUNAL OF THE BOARD'S 

ADJUDICATIVE ACTIVITIES 2 

THE TRIBUNAL'S RESPONSE TO THE WORKLOAD CHANGES 3 

THE 1994 RESTRUCTURING PLAN 4 

CONFLICT OF INTEREST PROBLEM IN TRIBUNAL -RELATED CASES ... 6 

WCAT DECISIONS AND WCB POLICY 9 

HIGHLIGHTS OF THE 1994 CASE ISSUES 11 

Re -employment 11 

Penalties Under the Re -employment Provisions 13 

Future Economic Loss Awards 14 

Non-economic Loss Awards 16 

Vocational Rehabilitation 17 

Occupational Stress 18 

Occupational Disease 19 

Experience Rating of Employers (NEER) 20 

Chronic Pam and Fibromyalgia 20 

Penalty Assessments 21 

Other Issues 22 

JUDICIAL REVIEW ACTIVITY 23 

Other Matters 23 

THE TRIBUNAL REPORT 

VICE-CHAIRS, MEMBERS AND STAFF 25 

TRIBUNAL COUNSEL OFFICE 25 

Intake 25 

Case Description Wnters 26 

Pre-hearing Legal Workers 26 

Lawyers 26 

Post-hearing Legal Workers 27 

Medical Liaison Office 27 



ill 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



INFORMATION DEPARTMENT 28 

Library Activities 28 

Publications 30 

SYSTEMS DEPARTMENT 31 

STATISTICAL SUMMARY 33 

Cases Received 33 

Cases Closed 34 

Remaining Inventory 34 

Case Completion Times 35 

Hearings and Decisions 35 

FINANCIAL MATTERS 36 

APPENDIX A 

VICE-CHAIRS AND MEMBERS IN 1994 47 

VICE-CHAIRS AND MEMBERS - 

EXPIRED APPOINTMENTS AND RESIGNATIONS 49 

VICE-CHAIRS AND MEMBERS -REAPPOINTMENTS 49 

NEW APPOINTMENTS DURING 1994 50 

CROSS-APPOINTMENTS 51 

SENIOR STAFF 52 

MEDICAL COUNSELLORS 52 

APPENDIX B 

AUDITORS' REPORTS AND FINANCIAL STATEMENTS 53 



IV 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



INTRODUCTION 



The Workers' Compensation Appeals Tribunal is a tripartite tribunal 
established in 1985 to hear appeals from the decisions of the Ontario Workers' 
Compensation Board. It is a separate and self-contained adjudicative 
institution, independent of the Board. 

This report is the Tribunal Chair's and the Tribunal's annual report to the 
Minister of Labour and to the Tribunal's various constituencies. It describes the 
Tribunal's operational experience during the reporting period and covers 
particular matters which seem likely to be of special interest or concern to the 
Minister or to one or more of the Tribunal's constituencies. The reporting period 
for this report is the calendar year ending December 31, 1994. 

This Report comprises, in effect, two reports: the Report of the Tribunal 
Chair and The Tribunal Report. The Report of the Tribunal Chair reflects the 
personal observations, views and opinions of the Chair. The Tribunal Report 
covers the Tribunal's activities and financial affairs, and developments in its 
administrative policy and process. 



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Workers' Compensation Appeals Tribunal 
Annual Report 1994 



REPORT OF THE TRIBUNAL CHAIR 



THE TRIBUNAL'S PERFORMANCE 

In the Chair's opinion, in 1994, the overall quality of the Tribunal's decisions 
remained excellent, and the Tribunal's hearing procedures and process 
continued to be fair and effective. However, the consequences of the caseload 
problem described in the 1992 and 1993 Annual Report (the previous report) 
became increasingly evident as 1994 evolved. 

By the end of the year, the Tribunal's inventory of applications - the number 
of applications of all types to be found within the Tribunal at any one 
point of time - had reached 2,152. (We had anticipated that the end-of-the-year 
inventory would reach 2,400, but a special production push in the last quarter 
made the difference.) This was a 63% increase over the inventory of 1,321 at the 
end of 1991 - the year the rate of incoming applications started to increase - and 
a 23% increase over the 1993 year-end figure of 1,747. 

The increasing inventory was the inevitable result of two distinct trends: 
marked increases in the number of applications being received, and significant 
growth in the average complexity of those applications. By the end of 1993, that 
combination had put the Tribunal in the position of not being able to deal with 
the number of cases it was receiving, and, with the trends in both areas still up, 
the shortfall worsened in 1994 with the resulting accumulation of another 405 
cases in the Tribunal's total inventory. 

The consequences of the work overload occasioned by the rise in the 
numbers and the increased complexity may be seen in increasing delays at 
various stages of the Tribunal's processes. 

The most troubling of these delays occurred in the writing of decisions after 
the hearing process was completed. By the time the increase in the average 
complexity of cases was recognized for the major trend that it was, the 
Tribunal's full-time panel chairs had been overloaded by the accumulation of 
the incremental additions to their workload. By the end of 1994, this 
phenomenon, exacerbated by medical problems experienced by a number of 
panel members and the social contract restraint on the number of working days 
(Tribunal OIC members were required to take two weeks of unpaid leave in 
1994) had created a decision-writing backlog of significant proportions. 

By the end of the reporting period, the significance of the decision-writing 
backlog had been recognized and a strategy for retrieving that particular 
backlog developed. This will be accomplished in 1995 and will require a 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



short-term reduction in the number of hearings scheduled for full-time 
vice-chairs. But it is obvious that whatever the other consequences of the 
Tribunal's overload, we must retain the capacity for delivering decisions within 
a reasonable time following completion of the hearing process. As the reporting 
period came to an end we were in the final stages in the development of a formal 
decision release policy designed to ensure that decision-writing backlogs would 
not recur. 

As indicated in the previous annual report, there is every reason to think 
that the increasing caseload and complexity trends will continue upwards for 
some time yet. During the latter months of the reporting period, the incoming 
caseload, in fact, plateaued at a rate of approximately 2,200 cases per year, but 
this is expected to be only a temporary respite. 

In the previous report, reference was made to a number of events pointing 
to continued increases, and most of those continued to be operative in 1994. But 
even those events do not foretell the whole of the caseload picture for the future. 
They, along with the caseload increases the Tribunal has experienced from 1992 
to 1994, are all manifestations of an underlying transformation of the 
fundamental demographics of the system's processes caused by the reforms to 
the system respecting post-1989 injuries (Bill 162) - a transformation that has 
been significantly augmented by the further legislative amendments in 1994 
(Bill 165). 



THE IMPLICATIONS FOR THE TRIBUNAL OF THE 
BOARD'S ADJUDICATIVE ACTIVITIES 

Adjudication backlogs at the WCB appear to be one of the principal factors 
accounting for the current pause in the upward trend of the Tribunal's incoming 
caseload. But the continuation of those backlogs cannot be counted on - if that 
is the right phrase - for much longer. Delayed adjudications at the WCB level 
result, amongst other things, in increased benefit costs. The system cannot 
tolerate permanent adjudication backlogs at the Board level, and these are 
bound to be resolved in the near future. The Board is working very hard at 
addressing the backlogs and in developing more efficient adjudicative 
strategies. The effects of those efforts should soon be felt at the Tribunal, and 
one hopes that the Board's plan to adjudicate not only faster but also better 
proves effective. Rushed or haphazard adjudication at the Board level always 
complicates the Tribunal's caseload picture from both a numbers and 
complexity perspective. The Board's efforts at simplifying their adjudicative 
procedures may also produce a one-time wave of cases arriving at the Tribunal 
ahead of their usual schedule - on top of the usual caseload arriving within 
traditional time-lines. 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



THE TRIBUNAL'S RESPONSE TO THE WORKLOAD 
CHANGES 

The Tribunal's 1994 responses to these changes in the workload included 
the following: 

• Reducing the waste of Tribunal resources on the processing of 
not-yet-ready or misconceived cases by implementing the new HAF 
(Hearing Application Form) policy. 

• Maximizing the efficient use of the Tribunal's scheduling resources through 
the full implementation of the new policy of designating hearing dates. The 
first Toronto-area cases governed by this policy were heard in March of 
1994, and the policy had been extended to out-of-Toronto cases by the end 
of the year. 

• The introduction of a greatly simplified Case Description format. 

• Planning and arranging for a major upgrade of the Tribunal's computer 
system - moving from the Digital All-in-1 system to a Microsoft Windows 
environment. The full change-over to the new system will be accomplished 
by May 1995. 

• Improved liaison between the Tribunal and the WCB concerning the 
requisitioning and delivery of Board files. 

• Continued efforts in coping with the moving-bulge aspect of our workload 
through moving resources in step with the bulge. While there is a pervasive 
common level of overload throughout the Tribunal, we also routinely 
experience "spikes" in that overload. It is in the nature of the Tribunal's 
caseload and processes that these spikes or bulges tend to move through 
the organization like a mouse through a snake. A commitment to creative 
flexibility in the assignment of resources has been necessary to ensure that 
the bulge does not get stuck. 

• A test of the Tribunal's capacity through a planned, extra push in the 
number of scheduled hearings during September, October and November. 
During this period we scheduled 25% more hearings than usual and the 
resulting obvious strain on all elements of the production structure 
demonstrated, in the Chair's view, that, as constituted in 1994, the 
Tribunal's true capacity for disposing of cases was effectively limited to 
about 1,700 to 1,800 cases per year. 

• The development of a strategy for resolving the decision- writing backlog, 
and the design of a new decision release policy. 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



• The development of a major restructuring plan to increase the Tribunal's 
capacity as the basis for the 1995 budget submission. 

We also continued with efforts to develop more abbreviated forms of 
decisions. These efforts have not, however, so far seemed to have contributed 
much to increased efficiencies. The fact is that in cases where it would clearly 
be more efficient to write a two- or three-page decision, two- or three-page 
decisions have been written. In other cases, we have found, as might have been 
expected, that it often takes more time to write shorter decisions. Also, 
discussions with the Tribunal's Advisory Group and other feedback from the 
user communities indicate that significant changes in the length or format of 
Tribunal decisions would not generally be welcome. There is a general, if 
sometimes rueful, recognition that detailed explanations are important. This 
effort continues, however, and perhaps more may be accomplished as we 
develop greater experience in experimenting with shorter decision formats. 



THE 1994 RESTRUCTURING PLAN 

The restructuring plan referred to above represents a major change in the 
way we approach our caseload. It was developed in the latter part of the 
reporting period and will be implemented through the course of 1995. 

The plan is predicated on a number of fundamental views about the 
Tribunal and its work that are shared by the Chair and his Tribunal colleagues. 
We believe, to begin with, that in its essential elements the Tribunal's present 
structure has been shown to provide an appropriate and effective process for 
dealing with the final appeal of decisions involving serious and difficult issues 
or issues of systemic significance. In our view, in the system's interest, a process 
that is true to those elements must be maintained for such appeals. From our 
discussions of the proposed restructuring plan with the members of the 
Tribunal's Advisory Group, and from other feedback over the years, we are 
confident that this view is one that is widely shared within the Tribunal's user 
and advocacy communities. That process will be referred to here as the 
Tribunal's "mainstream process". 

Our experience also tells us that a significant proportion of WCAT 
applications involve cases which are not ready for a final process of that nature, 
and that in the interest of efficient use of both the Tribunal's and the advocacy 
communities' resources these cases need to be excluded from any mainstream 
process until they are ready. (The reference here is to cases in which there has 
not in fact been a "final" decision at the WCB; where the issue agenda is 
confused or unnecessarily complicated or not complete; where the medical 
evidence is not sufficient; where there are obvious, important witnesses who 
have not been interviewed; where the applicant's representative has not 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



prepared the case; where there are relevant decisions still to be made at the 
WCB; where the applicant or his or her representative has misconceived the 
case; etc.) 

Experience also suggests that we have not exhausted the opportunities for 
resolving WCAT cases through expedited or alternative dispute resolution 
(ADR) techniques and strategies outside of the mainstream process. It is true 
that, as compared to adjudicative agencies in other fields, workers' 
compensation adjudicators, including the Tribunal, are handicapped in their 
resort to ADR techniques by the Workers' Compensation Act's statutory bar to 
any waiver of rights by a worker. ADR techniques that depend on negotiated 
settlements of rights-disputes fit awkwardly at best under a statutory regime 
that renders one party's settlement concessions ineffective in law. 

The Tribunal has been active in identifying the obvious opportunities (over 
90% of access and medical examination questions are now resolved through a 
mediation process), but under current structures it has had to identify these 
opportunities without the assistance of Tribunal adjudicators, as Tribunal 
adjudicators typically come into a case only at the hearing stage of the 
mainstream process. We have come to believe that if the possibilities for 
creative ADR techniques and strategies could be examined, case by case, at the 
beginning of the process by experienced adjudicators, and ADR opportunities 
developed under their auspices, there is likely to be much more that could be 
done in this respect. This would be particularly true, we think, if we were to 
agree that, on some issues or in some selected cases, written reasons or at least 
fully argued written reasons could be dispensed with unless requested by the 
parties. (Making decisions without full written reasons would no t be congruent 
with the requirements of the statute but, if the parties to the appeal did not 
object, the omission would not in some cases be inappropriate nor would it 
present any practical problem.) 

We also think that factual disputes affecting the availability of vocational 
rehabilitation services or the progress of vocational rehabilitation plans need to 
be given expedited treatment through new, specialized resources. 

The restructuring plan, which reflects these views, has three central 
features. First, is the creation of a panel-led case management team responsible 
for the initial screening of all incoming cases. This screening will be focused on 
two objectives: (1) identifying cases which can be diverted to expedited or ADR 
processes (which, in conjunction with the parties, the team will be responsible 
for devising ), and (2) ensuring that before cases which cannot be so diverted 
are admitted to the Tribunal's mainstream process they are indeed ready for 
hearing. The latter objective reflects a return to the Tribunal's original emphasis 
on the pre-hearing preparation of cases, but this time with the added, significant 
advantage of having that preparation conducted under the auspices of an 
experienced panel of adjudicators. 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



The second of the plan's three central features is the full-time assignment 
of one panel of Tribunal adjudicators to the specialized handling of all 
vocational rehabilitation cases emanating from the Board's new, time-limited 
mediation processes. 

The third feature is the organizing of "Interim Decision Panels" to whom 
the case management team or the vocational rehabilitation panel may refer 
preliminary adjudicative issues for expedited decisions that will be binding on 
the hearing panel which ultimately decides the case. 

It is difficult to say with confidence what level of workload this 
restructuring will eventually allow the Tribunal to handle appropriately. A 
great deal depends on how successful the case management team and the 
vocational rehabilitation panel prove to be in finding ways of disposing of cases 
short of subjecting them to the full treatment in the mainstream process, and 
that is an experimental process whose ultimate impact cannot be projected with 
certainty. The restructuring reflected in the 1995 budget submission will, 
however, equip the Tribunal to handle its present caseload and also position it 
to deal with further increases with optimum efficiency. 



CONFLICT OF INTEREST PROBLEM IN 
TRIBUNAL-RELATED CASES 

During this reporting period, for the first time in the Tribunal's history the 
Chair was required to designate hearing panels in appeals in which the Tribunal 
itself had a conflict of interest; appeals which we will refer to here as 
"Tribunal- related appeals". 

There were two such occasions. In one of the cases , the injured worker 
appellant was himself an OIC member of the Tribunal (the Tribunal was not 
the accident employer in the case since the injuries in question occurred during 
the member's previous employment), and, in the other, the injured worker 
appellant was a member of a Tribunal OIC member's immediate family. 

The Chair's initial thought was to ask the government for a special 
Order-in-Council appointment of three individuals from outside the Tribunal 
as Tribunal panel members who would be designated as a special panel to hear 
these appeals. On reflection, however, the Chair could see two serious problems 
with this approach: (1) the practical obstacles it presented and (2) the question 
of principle it posed. 

The practical obstacles are numerous. To begin with, the number of such 
appointments that might be required from time to time is not insignificant. 
While in this time period we were confronted with only two such cases, we are 
aware of at least three other current circumstances involving members or staff 
of the Tribunal or their immediate families in which an appeal to the Tribunal 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



is a possible development. And, of course, the problem presents itself not only 
in appeals by OIC members but also in appeals involving workers' 
compensation claims by any of the Tribunal's staff, as well as in appeals 
involving claims by the families of staff or members - whether immediate or 
extended - or their close friends or neighbours. 

Also, when the occasion does arise, it may well happen that more than one 
outside panel would be required. Because of the frequent need for pre-hearing 
conferences, interim decisions, and the Appeals Tribunal's power to reconsider 
its decisions, it is not unusual for any particular case to require some 
involvement of two or three differently constituted panels before the Tribunal 
is done with the case. The potential for requiring multiple panel involvement is 
present in every case. 

Another practical obstacle is that there is no pool of qualified outside people 
from which to draw. This would be particularly true for the panel chair 
positions. Private arbitrators would have the necessary adjudicative skills but 
not expert knowledge of the workers' compensation field. Those outside the 
Tribunal with current experience of workers' compensation adjudication 
suitable for a panel chair role are typically found only amongst the ranks of 
active worker or employer workers' compensation advocates, or within the 
WCB, none of whom would be appropriate for a direct, one-time appointment 
to the panel chair's neutral position. Worker and employer representative panel 
members not tainted by conflicts arising from their own full-time, outside 
employment would also not easily be found or recruited. 

Also, the time and procedures required to recruit any qualified persons who 
could be found and who were willing to take on so onerous an obligation (a 
commitment to training would be necessary) for such a limited assignment and 
to process their appointments, and the time and resources that would have to 
be devoted to training such appointees in the Tribunal's unique processes and 
bringing them up to speed on the Tribunal's jurisprudence, all make the 
proposition quite problematic. 

Moreover, the one-time appointment of outside panels would not solve the 
problem. For, unlike more court-like adjudicative institutions, the Tribunal is 
also intimately involved at the pre-hearing stage of appeals. And that 
involvement also presents conflict of interest problems with respect to 
Tribunal-related cases. The reference here is to the Tribunal's preparation of the 
case description, its pre-hearing review of evidence and issues and of the issue 
agenda, and its identification of the need for additional medical investigation, 
legal research, or mediation efforts respecting some issues. The Tribunal will 
also shortly be embarked on a new policy of intense, adjudicator-led screening 
and "management" of new cases with a view to selecting cases for alternate 
dispute resolution processes. And then there is the important staff support 
provided at the decision-making stage through the Tribunal's draft decision 
review procedures. 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



Thus, by no means is it only the members of the Tribunal's hearings panels 
who will present conflict issues in these Tribunal-related cases. And, while it 
may be considered at least possible to replace a hearing panel with outside 
adjudicators, it is not possible to conceive of the reproduction of the Tribunal's 
whole infrastructure through resort to outsiders. Accordingly, the appointment 
of outside adjudicators would not by itself resolve the conflict issue in 
Tribunal-related cases. 

The problem of principle inherent in the appointment of special outside 
hearing panels to deal with Tribunal-related cases is that such appointments 
would at best serve only to replace a perceived potential prejudice to one party 
by an equally apparent real prejudice to the other. 

The Tribunal's adjudicative role is an institutional role. Its panels are 
specialized, and thus highly expert in the adjudication of workers' 
compensation issues. Through various processes within the Tribunal, members 
are kept fully informed of developing matters within the field, and their 
adjudicative work benefits significantly from the strong collegial and expert 
environment in which it is carried out. 

To avoid the conflict problem through the use of outside panels would mean 
that Tribunal-related cases would have to be prepared in some ad hoc 
pre-hearing process entirely divorced from the Tribunal's usual processes, with 
the hearing being conducted and the decision made by non-expert panels 
isolated from all of the Tribunal's normal institutional influence and support. 
It is apparent, in the Chair's view, that the parties to such a proceeding would 
have substantial reason for doubting whether they had received the benefit of 
a decision-making process of comparable quality to what is routinely available 
to other people. 

The question, therefore, is whether we can justify - ethically or legally - 
solving the conflict problem in Tribunal-related cases through imposing on the 
parties to such cases a lengthier, radically different and obviously inferior 
adjudication process. 

In the light of these considerations, the Chair felt it was reasonable to 
conclude that, in the circumstances described above, where the Legislature has 
provided no specific alternative processes for Tribunal- related cases, it is 
reasonable to infer an intention to authorize the Tribunal to deal with such cases 
in the ordinary course despite the unavoidable conflict. 

Accordingly, in the two cases in question, regular Tribunal panels - not, of 
course, including the members whose relationships presented the conflict - 
were designated to hear and decide the appeals. The Chair did take care to 
designate members with as distant a relationship to the involved members as 
possible, and to arrange that the panel members would not be assigned to sit 
on other cases with the involved members during the period of the hearing and 
decision-making in their case and for a minimum period thereafter. Naturally, 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



it goes without saying that the hearing panel members would be scrupulous in 
not communicating with the members involved about their case except through 
the formal hearing process. 

This solution is obviously less than ideal, but, in the Chair's view, it is 
demonstrably the best of the available choices. 



WCAT DECISIONS AND WCB POLICY 

In the previous report, the Chair referred to the systemic difficulties that 
were being presented by the widening divergence between the Appeals 
Tribunal interpretations of the Act and the WCB's policy and to his opinion that 
this divergence could be fairly attributed to the WCB Board of Directors' failure 
to exercise its power to review WCAT interpretations under section 93 of the 
Act. (See Page 11 of previous Report.) 

In 1994, the Board of Directors again found no occasion when it thought it 
possible or desirable to exercise its section 93 powers. It did, however, decide 
that the divergence between the Board and the Tribunal on the chronic stress 
issue must be addressed, and the WCB staff was directed to prepare an interim 
chronic stress policy for the Board of Directors to consider. This work was still 
in progress at the end of the reporting period. 

The Board of Directors also tackled the basic problem from a process point 
of view, laying the groundwork for coming to grips with these WCAT-WCB 
differences in a routine manner. After discussion at its meeting on September 
23, 1994, followed by further adjustments at its meetingon October 28, the Board 
of Directors adopted a protocol for dealing with WCAT decisions that were not 
consistent with WCB policy. That protocol, as set out in the minutes of those 
meetings, reads as follows: 

As a result of discussions at both the September 23rd and October 28th, 1994 
Board of Directors' meetings, the following recommendations regarding Resolving 
Conflicts Between WCAT and the WCB in a Bipartite Environment were approved: 

(a) the Board of Directors direct the WCB staff to conscientiously discharge their 
duties by taking all reasonable steps available to them to ensure WCB/WCAT 
conflicts are resolved; these include: 

1. providing the Appeals Tribunal with submissions when the WCB has 
concerns about the approach or legal analysis adopted by a panel in a 
particular case, so that the WCB's concerns will be available to the next 
panel that considers the issue; 

2. reviewing Appeals Tribunal decisions as they are received to identify any 
issues on which the WCB and the Appeals Tribunal diverge; 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



3. proposing amendments of WCB policies and practices to the Board of 
Directors where the WCB staff is of the view that the Appeals Tribunal 
approach is correct; and 

4. recommending policy reviews to the Board of Directors when necessary to 
resolve a WCB/ WCAT conflict; 

(b) the Board of Directors approve the use of the policy review process in 
appropriate cases, adopting the following process: 

1. where the WCB staff conclude that a policy review would be an 
appropriate means of resolving a WCB/ WCAT conflict, a recommendation 
is made to the Policy and Planning Committee of the Board of Directors; 

2. the Policy and Planning Committee considers the recommendation and, if 
it agrees, recommends that a policy review be conducted and that the 
policy agenda be amended to accommodate the review and, if it does not 
agree, recommends that a policy review not be conducted; 

3. the Policy and Planning Committee's recommendations are reviewed by 
the Board of Directors and, if a policy review is initiated, the policy agenda 
is amended; 

4. the policy review is conducted by the WCB staff with external consultation; 

5. where consensus cannot be reached by the members of the Board of 
Directors, either the Chair may vote to resolve the issue or the members of 
the Board of Directors may make recommendations on revisions to the Act 
or regulations to the Minister of Labour pursuant to s.65(3)(b); 

6. where the issue is one of compliance with the law, and consensus cannot 
be reached, the Board of Directors shall conduct a section 93 review as the 
only way to resolve conflict; 

7. where consensus cannot be reached, and the Chair does not vote to break 
the tie, and recommendations on statutory or regulatory amendment are 
not made to the Minister of Labour, the Board of Directors shall conduct 
a s.93 review as the only way to resolve the conflict; 

8. to conduct a section 93 review, the WCB will inform all participants in the 
policy review that consensus was not reached and the issue is referred to 
the next Board of Directors' meeting where the Chair shall vote to resolve 
the issue; 

9. any decision made by the Board of Directors be promptly communicated. 

(c) Board Minute #1, December 6, 1991, Page 5494 be amended to authorize the 
Policy and Planning Committee to consider WCB staff recommendations 
regarding the initiation of s.93 policy reviews and to make recommendations 
to the Board of Directors. 

During 1994, the Tribunal once again began to receive Board staff 
submissions on issues raised in released Tribunal decisions. These were offered 
for the purpose of having them made available to the parties and the Tribunal 



10 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



panel in the next case in which the same issues arose. These initiatives 
anticipated the procedures contemplated by the protocol and were welcomed 
by the Tribunal. 



HIGHLIGHTS OF THE 1994 CASE ISSUES 

This section of the Chair's Report has been developed to highlight some of 
the legal, factual and medical issues which the Chair found of particular interest 
during the reporting period. Unfortunately, it is never possible to do more than 
note a sampling of issues. The issues are presented in no particular order of 
importance. Some have been noted previously, while others are new. 

During this reporting period, the Workers' Compensation Act, R.S.O. 1990, 
c. W.ll was amended by Bill 165 [the Workers' Compensation and Occupational 
Health and Safety Amendment Act, 1994, S.0. 1994, c. 24]. However, this Bill did 
not come into effect until the beginning of 1995, and none of its amendments 
were considered by the Tribunal during this reporting period. 

Issues under Bill 162 [the Workers' Compensation Amendment Act, 1989, 
S.0. 1989, c. 47] which was enacted in 1989 and which came into effect in 1990, 
were considered in a number of cases during this reporting period. For ease of 
reference, the Bill 162 cases have been grouped at the beginning of the case 
highlights. 

Again for ease of reference, the version of the Workers' Compensation Act 
incorporating the changes introduced by Bill 162 will be called "the current 
Act". The section numbers referred to with respect to the current Act reflect the 
renumbering introduced by the Revised Statutes of Ontario, 1990. The earlier 
versions of the Workers' Compensation Act, which continue to apply to accidents 
occurring prior to 1989 and 1985, will be referred to as the pre-1989 Act and the 
pre-1985 Act. 



Re-employment 

This reporting period saw a number of Tribunal decisions dealing with the 
re-employment rights created by the Bill 162 amendments. Under the pre-1985 
and pre-1989 legislation, employers were not required to offer to re-employ 
injured workers. Section 54 of the current Act requires specified employers to 
offer to re-employ injured workers. The Board has a discretion to impose a 
penalty on the employer and/or to award benefits for up to one year to a worker 
if the employer breaches its obligations under section 54 of the current Act. 

The new rights and obligations created by the current Act raise questions 
of statutory interpretation, as well as the need to review a broader range of 
evidence than was relevant under the pre-1985 and pre-1989 Acts. For example, 
the parties' working relationship, the existence of a collective agreement or the 



11 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



structure of the employer's business may be relevant factors to consider under 
the re-employment provisions. There is a potential for overlap between cases 
governed by the re-employment provisions of the current Act and labour 
arbitration proceedings and complaints under the Ontario Human Rights Code 
[R.S.0. 1990, c. H.19]. See, in particular, Decision No. 690/93 (1994), 32 W.C.A.T.R. 
107, which comments on this. 

Re-employment appeals may also be complicated to adjudicate because of 
the fast-track process involving mediation and one-step adjudication which the 
Board has adopted in response to the time limits contained in the 
re-employment provisions. While re-employment rights need to be adjudicated 
quickly at the Board, the fast-track process may mean that the Board's 
Re-employment Branch has considered only a limited set of issues, and that 
objections to other issues are being pursued through the normal Board appeal 
process. In Decision No. 788/921 (1994), 29 W.C.A.T.R. 69, the Panel found that it 
had the jurisdiction to consider whether or not an injury was the result of a 
re-occurrence, (which would be governed by the pre-1989 Act), or a new accident 
(which would be governed by the current Act, including the re-employment 
provisions), even though the Reinstatement Officer had left this issue to be 
appealed through the normal Board processes. The Panel found that it was 
implicit in the re-employment decision that the accident was governed by the 
current provisions. In the Panel's view, characterization of the accident was 
critical to the Reinstatement Officer's jurisdiction and the Tribunal had the 
jurisdiction to consider it on appeal. 

The Annual Report 1991 and the Annual Report 1992and 1993 noted thatearly 
Tribunal cases had held that the employer's obligation to offer to re-employ did 
not arise until the employer had received a valid notice of fitness from the Board. 
See Decision No. 372/91 (1991), 19 W.C.A.T.R. 317 and Decision No. 605/91 (1991), 
20 W.C.A.T.R. 131. The Board provided general submissions on this 
interpretation and the Annual Report 1992 and 1993 recorded a trend in more 
recent cases to interpret the current Act as creating a general obligation to 
re-employ. This trend continued during the 1994 reporting period. While not 
all of the decisions were unanimous, all unanimous and majority decisions 
interpreted the current Act as creating a general obligation to re-employ which 
may arise whether or not the Board has issued a notice of fitness. Similarly, the 
section 54(10) presumption which applies where a worker is let go within six 
months, can arise whether or not there has been a previous Board notice of 
fitness. See, for example, Decision No. 6/93 (1994), 29 W.C.A.T.R. 86 and Decision 
No. 83/94 (1994), 32 W.C.A.T.R. 222. At the end of 1994, a judicial review 
application was pending in which the "general obligation" interpretation will 
be in issue. 

While recent Tribunal cases have accepted the Board's interpretation of 
when the obligation to re-employ arises, an area of continued divergence 
between the Board and the Tribunal is what test an employer must meet to show 
that it has met its obligations under section 54. The section 54(10) presumption, 
which applies where the worker is let go within six months, does not change 



12 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



the nature of the employer's obligation, but increases the degree of confidence 
that a panel must have in the employer's reasons for termination (see Decision 
No. 83/94). 

Current Board policy is that an employer must have "just cause" before it 
can terminate a worker without breaching its re-employment obligations. The 
Tribunal, on the other hand, has relied on the Supreme Court of Canada 
decision in Lafrance v. Commercial Photo Service Inc., [1980] 1 S.C.R. 536, and 
reasoned that the intent of the current Act is to place the worker in the position 
he or she would have been if the workplace accident had not occurred. Section 
54 is not intended to protect a worker from the bona fide exigencies of the 
workplace. Thus, in deciding whether an employer has rebutted the 
presumption, Tribunal panels have asked whether the employer displayed 
anti-injured worker animus or whether the reasons for termination were related 
to the workplace injury (see Decision No. 6/93), or whether the compensable 
accident, the compensable disability or the worker's status as an injured worker 
played a role in the employer's decision to terminate (see Decision No. 356/93). 

In a situation where an employer has been forced to terminate a number of 
workers in order to ensure the long-term viability of the business operation, 
panels have considered whether there is evidence that the termination was for 
reasons genuinely unrelated to the workplace accident. For example, in a mass 
lay-off situation, a panel considered whether the employer had adopted and 
applied objective criteria in deciding who to terminate (see Decision No. 83/94). 
While an employer may be obliged to change its operations for valid business 
reasons, this does not mean that the employment relationship can be severed if 
there is alternative work which could be provided to the injured worker (see 
Decision No. 746/91 (1994), 30 W.C.A.T.R. 31). 



Penalties Under the Re-employment Provisions 

The Tribunal has applied the Board's policy in determining whether there 
has been a continuous employment relationship between the worker and the 
employer (see Decision No. 356/93 (February 16, 1994)) and whether to waive a 
penalty in the context of a voluntary severance agreement (Decision No. 394/94 
(1994), 32 W.C.A.T.R. 252). However, Tribunal decisions have continued the 
trend noted in the 1992/1993 Report of taking a more flexible approach to 
penalty assessments. Section 54(13) provides for a maximum penalty equivalent 
to the amount of the worker's net average earnings for the year preceding the 
injury. Board policy indicates that the maximum penalty should generally be 
imposed unless the employer cannot hire the worker for reasons beyond its 
control (for example, a market collapse) or the employer subsequently rehires 
the worker. Decision No. 6/93 commented that neither Tribunal panels nor Board 
adjudicators apply the Board policy strictly. In that case the penalty was 
reduced from 75% to 25% , based on the employer's honest but mistaken beliefs. 
Decision No. 185/93 (1994), 30 W.C.A.T.R. 148, held that there is a discretion not 
to order any penalty to the employer or benefits to the worker where the 
employer has only committed a technical breach of section 54. 



13 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



Future Economic Loss Awards 

Under the pre-1985 and pre-1989 Acts, workers who suffer a permanent 
disability are entitled to a pension for the impairment of their earning capacity 
estimated from the nature and degree of the injury. Under the current Act, the 
pension system has been replaced by a dual award system which compensates 
for future economic loss (FEL) and non-economic loss (NEL). This reporting 
period saw a number of cases on FEL. 

Section 43 of the current Act provides for compensation for loss of future 
earnings where a worker suffers injury resulting in permanent impairment or 
resulting in temporary disability for 12 continuous months. This is a change 
from the previous Acts, which only provided for pensions for permanent 
disability. The section raises a number of questions of statutory interpretation, 
including how the future loss of earnings is to be calculated and the effect of 
the time limits for determining compensation in section 43(10) and the effect of 
the provisions for reviewing the FEL determination at periodic intervals under 
section 43(13). There is also a provision in section 43(9) for a FEL supplement 
where the worker is receiving FEL compensation and is co-operating in a 
Board-authorized vocational or medical rehabilitation program. In light of this 
provision, the Board has developed a system of FEL "sustainability" awards, 
whereby a worker who is back at work and incurring no wage loss may receive 
a nominal FEL award. This serves the purpose of holding the availability of a 
supplement open for a worker who has not suffered any earning loss, but is at 
risk of doing so. If a work arrangement ends for some reason, the Board then 
has the jurisdiction to provide vocational rehabilitation and a FEL supplement 
pursuant to section 43(9). Several cases have considered FEL sustainability 
awards. 

Decision No. 776/931 (1994), 32 W.C.A.T.R. 114, is the most thorough 
discussion of the FEL provisions to date, although it does not reach a final 
conclusion since a number of issues had not been the subject of submissions at 
the hearing. The Panel noted that this was not surprising since the issues arising 
in respect of FEL adjudications are generally appearing at the Tribunal for the 
first time. The Panel outlined its preliminary analysis of the issues and asked 
for additional submissions from the Board, the parties and Tribunal Counsel. 

Among the issues raised was the effect of the time limits in section 43(10). 
Should these provisions be interpreted as mandatory and, if so, what are the 
consequences of a late determination? The Panel also considered what 
evidence a subsequent decision-maker may consider when reviewing a FEL 
determination on appeal. This question arises from the fact that the current Act 
contemplates periodic reviews of the original determination (often called the 
"Dl" date) at the 24 month point (usually referred to as the "Rl" date) and the 
60 month point (the "R2" date). While the Panel asked for submissions, it noted 
its present view that subsequent decision-makers would be obliged to consider 
any evidence that is relevant to the nature of the impairment or to the worker's 
personal circumstances as at the time of the original FEL decision (Dl). 



14 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



However, the Panel agreed with earlier Tribunal Decision No. 344/93 (1993), 
27 W.C.A.T.R. 259 and Board policy that subsequent changes in a worker's 
medical condition or circumstances should not influence an assessment on the 
appeal of the merits of the original Dl decision. The Act required a prospective 
determination of the worker's likely future earnings loss, given the nature of 
the impairment and the worker's personal circumstances as they existed on Dl . 

Decision No. 776/931 also discussed the criteria which must be considered in 
making a FEL determination. These criteria are specified by section 43(7) of the 
Act and also by section 53. The Panel emphasized the need to address the issues 
raised by the Act, which include the personal and vocational characteristics of 
the worker and the prospects for successful medical and vocational 
rehabilitation, and not focus solely on whether the worker was employed at the 
Dl date. While the possibility of re-employment with the accident employer is 
an important consideration in most cases, in deciding whether a worker had 
been offered a suitable job by the accident employer, it is necessary to consider 
not only whether the job is compatible with the worker's condition, but also 
whether the job is realistic and sustainable over a period of time. 

The Panel recognized the difficulty of estimating what a worker's future 
loss of earnings might be. While the Board has used FEL sustainability awards 
to provide some flexibility in this area, there are limits on their effectiveness. A 
FEL sustainability award only works where the FEL adjudicator recognizes the 
possibility of a breakdown in the job arrangement and where the worker will 
benefit from rehabilitation. It does not address unexpected breakdowns, a lack 
of rehabilitation potential, or the possible unfairness to an employer where a 
100% FEL award is made (because the worker is not working at the time of the 
determination) and the accident employer subsequently offers a suitable 
modified job at no wage loss. The Panel suggested another means of providing 
flexibility might be to use the Board's reconsideration power under section 70 
of the Act. Again, the Panel requested submissions from the Board on this. 

The question of the time limits in section 43(10) was also raised in Decision 
No. 633/93 (1994), 31 W.C.A.T.R. 119. In that case the Panel found that the FEL 
determination could not have been done at the twelve-month point because 
further psychiatric examination was necessary, and held that the 18-month 
decision date was mandatory. In Decision No. 519/94 (1994), 33 W.C.A.T.R. 146, 
it was noted that section 43(12) allowed a FEL determination to be made later 
than 18 months, if the worker was not receiving compensation and entitlement 
was in dispute. 

All of the Tribunal's decisions have agreed that a FEL determination must 
be made on a prospective basis as at the date of the original FEL determination 
(see Decision No. 519/94, Decision No. 787/94 (1994), 33 W.C.A.T.R. 157 and 
Decision No. 633/93. And see Decision No. 776/931, which indicates agreement 
while noting the need to consider all evidence relevant to the worker's 
circumstances at Dl, including evidence which has subsequently become 
available. 



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Workers' Compensation Appeals Tribunal 
Annual Report 1994 



While Decision No. 776/931 noted concerns with the Board's use of FEL 
sustainability awards and asked for submissions, Decision No. 787/94 provides 
an example of where a sustainability award may be useful. A student was 
injured by a workplace accident but was able to pursue substantially the same 
career path following the accident. While the Panel found that there was no 
significant difference between the worker's pre-injury earnings and his likely 
post- injury earnings, a 1 % FEL sustainability award was made since there was 
a potential for the worker to suffer some disadvantage over the next two years. 



Non-economic Loss Awards 

Non-economic loss awards, the second part of the compensation package 
which replaces the old pension system, are governed by section 42 of the current 
Act. They differ from FEL awards in that they are only available to workers who 
suffer permanent impairment. Section 42(2) provides a formula for calculating 
the NEL award and section 42(5) requires use of a prescribed rating schedule 
to determine a worker's permanent impairment expressed as a percentage of 
total permanent impairment. The section also sets out a detailed procedure for 
determining NEL awards, including obtaining medical assessments from 
medical practitioners and submissions from the worker and employer, and 
special review procedures. 

To date, there has only been one Tribunal decision on NEL. Decision No. 
269/93 (1994), 30 W.C.A.T.R. 123, considered two important issues arising under 
section 42. The first was the question of periodic lump sum payments. The Panel 
agreed with the Board's interpretation of section 42(4) which states that if 
compensation for a non-economic loss is less than or equal to $10,000, it "shall" 
be paid as a lump sum. The Tribunal found that there was no discretion to pay 
a smaller award by way of periodic payments. 

Decision No. 269/93 also considered the use of the American Medical 
Association Guides (AMA Guides). Regulation 1102 [R.R.O. 1990], section 15 
states that the rating schedule to be used for assessing impairment under section 
42 is the American Medical Association Guides to the Evaluation of Permanent 
Impairment (third edition revised), as it read on the 14th day of January, 1991. 
The Regulation goes on to provide that when determining the degree of a 
worker's permanent impairment for a type of impairment not listed in the rating 
schedule, the Board shall consider the listing for the most analogous conditions. 

Decision No. 269/93 found that the Board did not have a discretion to deviate 
from the applicable rating schedule where the impairment was specifically 
listed in the AMA Guides. The AMA Guides envision a four-step approach 
to rating: (1) a medical evaluation, (2) an analysis of the evaluation, (3) a 
comparison of the evaluation with the AMA Guides and (4) an evaluation of 
the worker as a whole person using the "combined values chart" to rate the 
worker's permanent impairment. For information purposes, the Panel included 



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Workers' Compensation Appeals Tribunal 
Annual Report 1994 



as an Appendix a set of three examples provided by the Board of how the WCB 
Medical Consultants use the AMA Guides for calculating the impairment of the 
whole person. 



Vocational Rehabilitation 

The Annual Report 1992 and 1993 noted that, prior to the current Act, there 
was no statutory requirement to provide vocational rehabilitation services, 
although the Board had a statutory discretion to do so and had developed a 
number of vocational rehabilitation policies. Under the pre-1985 and pre-1989 
legislation, vocational rehabilitation activities also had the potential to affect a 
worker's entitlement to supplementary benefits and temporary partial benefits. 
Under the current Act, vocational rehabilitation has even greater importance 
and is central to the new scheme for compensating workers. 

The current Act places a new statutory obligation on the Board to offer 
rehabilitation services to reduce income loss due to a compensable injury. The 
Act ties the level of FEL benefits to the worker's prospects of successful medical 
and vocational rehabilitation in determining future loss of earnings under 
section 43(7). Medical rehabilitation may also affect NEL benefits since section 
42(6) requires consideration of the extent of the worker's permanent 
impairment, "having regard to the existing and anticipated likely future 
consequences of the injury." In addition, for workers covered by the pre-1985 
and pre-1989 Act, vocational rehabilitation is also relevant to entitlement to 
transitional supplements under section 147 of the current Act. 

As indicated in the earlier discussion of FEL cases, vocational rehabilitation 
is a key consideration under section 43. Several cases have commented more 
generally on the role of vocational rehabilitation, both in FEL and section 147 
supplement cases. Decision No. 214/92 (1994), 30 W.C.A.T.R. 54 noted that, with 
the Bill 162 amendments, many more decisions will need to be made during the 
life of a case file and the Tribunal will be asked more frequently to decide parts 
of a case while other aspects are being decided simultaneously at the Board. 
Problems resulting from this simultaneous adjudication are most acute in cases 
where the appeal results in a retroactive application of a Tribunal finding that 
will change the subsequent decisions by the Board on the file. This can be 
compounded when statutory review dates, for example, in FEL cases, are 
involved. The order of adjudication of issues will take on greater importance. 
Decision No. 486/93 (March 14, 1994) is a good example of this. The Panel 
commented that their finding, that the worker had not refused suitable 
employment, might mean that the Board might wish to re-adjudicate the 
worker's FEL award which had been based on the assumption that the worker 
had refused suitable work so that there was no wage loss attributable to the 
accident and, accordingly, no FEL award (see also Decision No. 519/94 
(December 21, 1994)). 

In Decision No. 570/93 (1994), 30 W.C.A.T.R. 184, the Panel commented that 
in their view vocational rehabilitation decisions and FEL decisions were 



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Workers' Compensation Appeals Tribunal 
Annual Report 1994 



interdependent. Considering the long-term nature of a FEL award, the Panel 
decided that a further attempt at vocational rehabilitation was appropriate and 
directed the Board to re-open the worker's vocational rehabilitation file. 
Similarly, Decision No. 84/93 (1994), 29 W.C.A.T.R. 101, noted that there was an 
advantage to sponsoring the worker's retraining course since the worker would 
obtain a marketable skill and the higher earning potential would reduce the 
long-term FEL award. 

In the section 147 context, Decision No. 867/92 (December 24, 1993) noted 
that the key factor in deciding whether a worker was entitled to a transitional 
supplement under section 147(4) was whether the worker was likely to benefit 
from rehabilitation. A worker could still be entitled to a section 147(4) 
supplement where his own self-designed vocational rehabilitation program 
had failed, providing that he was available or willing to undergo some 
vocational rehabilitation testing by the Board so that the Board could be satisfied 
as to whether the worker was likely to benefit from vocational rehabilitation or 
not. Decision No. 689/91 (1994), 30 W.C.A.T.R. 10, considered whether a section 
147(4) supplement was payable where the worker had a continuing 
compensable disability but where subsequent non-compensable events had 
caused her to lose her potential for vocational rehabilitation. Decision No. 689/91 
found that there was no requirement to consider the reason for the lack of 
vocational rehabilitation potential under section 147(4). This decision has 
prompted the Board to make general submissions on the interpretation of 
section 147(4). These general submissions will be placed before panels in other 
cases who will have an opportunity to consider them. 



Occupational Stress 

The Annual Report 1990 and the Annual Report 1991 record that the Board 
was in the process of developing a policy on chronic occupational stress, in 
addition to its policy on stress claims resulting from traumatic and 
life- threatening events. Since no Board policy on chronic stress was adopted 
during this reporting period, the Tribunal continued to adjudicate chronic stress 
appeals under the Act on a case-by-case basis. 

The Annual Report 1992 and 1 993 noted the development of anew test which 
addresses the problem of how to assess workplace stressors and the subjective 
reaction of workers to them. See, for example, Decision No. 631/91 (1992), 
21 W.C.A.T.R. 251, which held that the test was whether there were stressors, 
usual or unusual in the workplace and, if so, whether a reasonable person in a 
similar situation would find these stressors to be potentially disabling. This test 
represents a middle ground between a purely objective and purely subjective 
assessment of workplace stressors. This test continued to be applied during the 
current reporting period (see Decision No. 363/91 (January 26, 1994) and Decision 
No. 42/94 (July 13, 1994)). Tribunal cases have also continued to distinguish 
between cases of disability and situations where the worker's reaction to the 
workplace stress was emotional, but did not amount to a true disability (see 
Decision No. 517/93 (1994), 32 W.C.A.T.R. 91). 



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Workers' Compensation Appeals Tribunal 
Annual Report 1994 



Two cases also considered the question of whether chronic workplace stress 
could contribute to the development of coronary artery disease. While Decision 
No. 857/91 (1994), 31 W.C.A.T.R. 14, found a causal connection based on the 
medical evidence about the particular worker and general medical literature, 
Decision No. 803/93 (1994), 31 W.C.A.T.R. 166, distinguished Decision No. 857/91 
on the basis of dispute in the medical community on the general question and 
on the grounds that the evidence about the particular worker did not support 
a finding of causation. 



Occupational Disease 

Occupational disease cases involve workplace exposure to harmful 
processes or substances. The Tribunal's interpretation of the law in this area 
remains the same. Disabilities are compensable if they fall within the statutory 
definition of "industrial disease", or within the "disablement" branch of the 
statutory definition "accident". 

The Tribunal has been called on to adjudicate a broad range of occupational 
disease appeals. See, for example, Decision No. 234/90 (1994), 29 W.C.A.T.R. 1 
(which considered exposure to radon in a uranium mine and lung cancer), 
Decision No. 62/91 (1994), 31 W.C.A.T.R. 1 (which dealt with exposure to 
vibration and development of vasospastic disease (white finger disease) in the 
hands and feet), Decision No. 473/91 (1994), 32 W.C.A.T.R. 14 (which considered 
workplace exposure to dioxin and liver cancer), Decision No. 301/92 (August 17, 
1994) (which considered workplace exposure to paint fumes and chronic toxic 
encephalopathy (chronic painter's syndrome)) and Decision No. 266/93 (May 24, 
1994) (which considered workplace exposure to asbestos and lung cancer). In 
cases involving cancer, a number of Tribunal decisions have held that the most 
important factors to consider are the latency period and the intensity of 
workplace exposure. More controversial and less important considerations are 
the location of the cancer, the type of cancer and, in the case of certain types of 
exposure and lung cancer, fibrositic changes to the lung (see, for example, 
Decision No. 266/93). Other factors to consider are non-occupational 
contributing factors, physiological factors and significant predictive factors (see 
Decision No. 473/91). 

Decision No. 820/93 (1994), 31 W.C.A.T.R. 178 is an interesting case involving 
exposure to granite dust. The worker was initially diagnosed as having silicosis 
and was advised by his doctor to leave work. Subsequentiy the worker was 
diagnosed as having emphysema and not silicosis. While the Panel found that 
the workplace exposure to dust was not a significant contributing factor to the 
worker's emphysema, it also found that he was entitled to benefits for a period 
of preventative removal pursuant to the statutory definition of "industrial 
disease" which includes "a medical condition that in the opinion of the Board 
requires a worker to be removed temporarily or permanently from exposure to 
a substance because a condition may be a precursor to an industrial disease." 



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Workers' Compensation Appeals Tribunal 
Annual Report 1994 



Although the original diagnosis of silicosis was wrong, the worker was entitled 
to receive benefits until there was clear and convincing evidence that he did not 
have silicosis. 



Experience Rating of Employers (NEER) 

NEER is an experience rating program which is intended to shift some of 
the burden of a rate group's costs to employers with greater claim costs. An 
employer's actual costs in a year are compared with the assessment rate for the 
rate group. An employer's costs for that year are considered in the calculation 
of the employer's assessment in each of the following three years. 

Decision No. 113/931 (1994), 30 W.C.A.T.R. 73, followed previous Tribunal 
decisions in holding that the Tribunal has the jurisdiction to review decisions 
of the Board which the Board may consider administrative in nature (for 
example, the administration of the NEER program). The Tribunal may consider 
all aspects of the experience rating program in deciding under section 73(1) of 
the current Act whether to grant relief to an employer from a NEER surcharge 
on the basis of the real merits and justice of the case. Decision No. 311/94 (1994), 
31 W.C.A.T.R. 211 allowed an adjustment to an employer's NEER assessment 
where the only activity on a worker's file during the year was a payment of 
travel expenses for the worker to go to a medical examination required for 
adjudication purposes. The Panel distinguished between travel expenses 
necessary for medical care, which were a type of health care benefits, and 
expenses for the administration of the Act. Since the travel expenses were not 
incurred for active treatment, the employer was entitled to have the NEER 
re-calculated. 



Chronic Pain and Fibromyalgia 

Chronic pain and fibromyalgia have been issues of continuing interest to 
those involved in workers' compensation. While the Board and the Tribunal 
initially took different views of whether chronic pain was within the scope of 
the Workers' Compensation Act, the WCB board of directors' section 93 [then 
section 86n] review of June 1, 1990 [Review of Decisions No. 915 and 915A (1990), 
15 W.C.A.T.R. 247] showed substantial agreement between the two institutions. 
The background to the Board's and the Tribunal's treatment of chronic pain and 
fibromyalgia is set out in some detail in earlier Annual Reports (in addition to 
the Annual Report 1992 and 1993, see Appendix C to the Third Report and the 
Annual Report 1 991). While the board of directors found that there was no need 
to direct the Tribunal to reconsider Decision No. 915 (1987), 7 W.C.A.T.R. 1 and 
Decision No. 915A (1988), 7 W.C.A.T.R. 269 (which had held that chronic pain is 
compensable and that the start date for compensation should be March 27, 
1 986), the Tribunal was directed to reconsider a number of decisions which had 
awarded temporary benefits for chronic pain prior to March 27, 1986. This 
reporting period saw the release of two final decisions pursuant to this direction 
to reconsider, Decision No. 749R (December 6, 1994), which was fact-specific, 
and Decision No. 648/87R (1994), 32 W.C.A.T.R. 1. 



20 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



Decision No. 648/87R held that the effect of the board of directors' section 93 
direction was to compel the Tribunal to re-open and re-adjudicate Decision No. 
648/87. However, the Tribunal was required to re-adjudicate according to its 
usual jurisdiction under section 86 of the Act and in light of the requirement in 
section 73 that it decide on the real merits and justice of the case. The Panel also 
commented on the requirements of a valid section 93 direction: the direction 
must relate to a Tribunal decision turning on an interpretation of policy and 
general law; it must be issued by the board of directors; and it must be given in 
writing with reasons. After conducting a reconsideration proceeding, the 
Tribunal may allow the original decision to stand if the Panel is satisfied that 
the decision was correct. 

The Decision No. 648/87R Panel had two concerns with the Board's section 
93 direction. The board of directors had not provided written reasons for its 
decision and this prevented the Panel from assessing the correctness of the 
Tribunal decision and the real merits and justice. The second concern arose from 
the section 73 requirement to decide on the real merits and justice. While the 
Panel generally accepted the Board's policy of limiting the retroactivity of 
chronic pain awards to March 27, 1986, the rationale for this limitation was good 
public administration. Considering the small number of cases involved, the 
principle of finality of Tribunal decisions, and the unfairness to the worker of 
the delay, the question of good public administration should be re-examined. 
The Panel found that it would be unfair to the worker to reach a different result 
given the history of the case. Decisions No. 648/87 and 648/87R are currently 
subject to a judicial review application which may be considered by the Ontario 
Court (General Division) Divisional Court in the next reporting period. 

Turning to other chronic pain and fibromyalgia cases, Decision No. 371/93 
(1994), 31 W.C.A.T.R. 84, and Decision No. 188/94 (August 10, 1994) considered 
appeals for benefits for fibromyalgia conditions and a recent consensus 
document compiled at the Second World Congress on Myofascial Pain and 
Fibromyalgia. Decision No. 343/94 (1994), 33 W.C.A.T.R. 95, reviewed the 
principles governing apportionment of pensions in the context of a chronic pain 
appeal where the majority found that there was a moderate pre-existing 
condition and subsequent non-compensable events had also affected the 
condition. 



Penalty Assessments 

Decision No. 894/91 (December 1, 1994) considered the calculation of a 
penalty assessment under section 103(8) of the Act where the employer was 
re-classified to a new rate group with a significantly lower assessment rate and 
lost the benefit of its life-time surplus under the old rate group. The Board's 
practice is to levy a first penalty of 100% under section 6(3) of Regulation 1102 
when the criteria specified in section 6(1) are met. The Panel reduced the penalty 
to 50% in light of a number of factors, including the employer's favorable 
accident cost record prior to the re-classification, the rapid expansion of 
business in the first year of the re-classification and the lack of written notice of 



21 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



the penalty until three years later, as well as the effect that SIEF relief would 
have had when combined with the employer's life-time surplus under its old 
rate group, had this surplus been transferable to its new rate group. 

Decision No. 332/94 (1994), 31 W.C.A.T.R. 217 was the first Tribunal case to 
consider the Board's Workwell program and the use of the written evaluation 
form to assess the work site. The Panel used a correctness standard of review 
in deciding the appeal. Based on the testimony and other evidence at the 
hearing, the Panel set aside the surcharge levied under section 103(4) of the Act. 
It also made several suggestions about the program, including the need to 
provide employers with more information. The Board has indicated an 
intention to make submissions to the Tribunal on Workwell in future cases. 



Other Issues 

Other significant legal and medical issues to come before the Tribunal 
included: the appropriate classification of an airline operation as an employer 
under Schedule 1 or Schedule 2 of the Act (Decision No. 613/90R (1994), 

29 W.C.A.T.R. 14); the effect of delay by a worker in reporting an injury under 
section 20(1) of the pre-1989 Act [now s. 22(1)] (Decision No. 168/93 (1994), 

30 W.C.A.T.R. 84); the effect of delay in bringing an appeal from an adverse 
Board decision (Decision No. 833/9312 (November 23, 1994) and Decision No. 
426/941 (1994), 32 W.C.A.T.R. 266); criteria for transferring the costs of medical 
management to the Administrative Fund (Decision No. 192/93 (1994), 

29 W.C.A.T.R. Ill, and Decision No. 562/94 (October 20, 1994)) whether the 
Tribunal has jurisdiction to pay legal fees (Decision No. 403/941 (1994), 

31 W.C.A.T.R. 293 and Decision No. 731/931 (1994), 31 W.C.A.T.R. 149); the 
appropriate pension rating for a mydriatric pupil and corneal scarring (Decision 
No. 877/93 (1994), 29 W.C.A.T.R. 229); the Tribunal's general procedures for 
determining section 71 appeals on the basis of written submissions or telephone 
conferences (Decision No. 871/931 (1994), 29 W.C.A.T.R. 221); whether a variety 
of earning-type payments such as long-term disability benefits (Decision No. 
516/92 (1994), 31 W.C.A.T.R. 39), overtime pay (Decision No. 286/93 (1994), 

30 W.C.A.T.R. 165), or unemployment insurance benefits (Decision No. 600/93 
(1994), 31 W.C.A.T.R. 101) should be included as part of the worker's 
pre-accident earnings basis; and the relationship between the Workers' 
Compensation Act and the Freedom of Information and Protection of Privacy Act 
[R.S.0. 1990, c. F.31] (Decision No. 903/94 (1994), 33 W.C.A.T.R. 238). 



22 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



JUDICIAL REVIEW ACTIVITY 

In 1994, two applications for judicial review were heard by the Ontario 
Court (General Division), Divisional Court from Decisions No. 385/93 and 
439/931. 

Both applications were dismissed. 

Two further applications for judicial review - one related to Divisional 
Court File No. 1766/93, the other to Decision No. 824/93 - were withdrawn on 
April 5, 1994 and July 27, 1994. 

At the end of 1994, eight applications for judicial review of the following 
Tribunal decisions remained outstanding: 

Decision No. 648/87 
Decision No. 586/91 
Decision No. 775/92 
Decision No. 882/92 
Decision No. 82/93 
Decision No. 351/93 
Decision No. 346/94 
Decision No. 432/94 



Other Matters 

On December 2, 1992, an injunction was granted by the Ontario Court 
(General Division) restraining the applicant from proceeding with a section 17 
application before the Tribunal, until the trial or other final disposition of the 
matter. The Tribunal was granted status as a friend of the Court and opposed 
the granting of the injunction on jurisdictional grounds. On February 4, 1993, 
leave to appeal from this decision was granted, and on June 9, 1993, the 
Divisional Court set aside the injunction. 

On January 24, 1994, leave to appeal to the Ontario Court of Appeal was 
granted in this matter. 

On September 30, 1994, the Tribunal was successful in bringing a motion to 
dismiss an action for defamation brought against one of its panels for statements 
made in a Tribunal decision. The action was dismissed based on the doctrine of 
absolute privilege. 



23 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



THE TRIBUNAL REPORT 



VICE-CHAIRS, MEMBERS AND STAFF 

Lists of the Vice-Chairs and Members, senior staff and Medical Counsellors 
who were active during the reporting period, as well as a record of the roster 
changes and resumes for newly appointed Vice-Chairs and Members, can be 
found in Appendix A. 



TRIBUNAL COUNSEL OFFICE 

The Tribunal Counsel Office (TCO) consists of six groups, each reporting 
to the General Counsel. 



Intake 

The Intake Department handles all incoming appeal applications and the 
public's questions about appeals and about the appeal process. 

In 1994 a new initiative was introduced through Intake in the form of a new 
Hearing Application Form (HAF). The form reflects a new process which 
requires applicants to provide more details about their reasons for appeal, to 
provide a tentative list of witnesses, and to submit all new medical information 
with the HAF. 

The purpose of these changes is to allow for a greater level of scrutiny of 
the appeals at an early stage, to identify jurisdictional and issue agenda 
problems. The purpose is also to allow the Tribunal's Medical Liaison Office to 
review all the significant medical evidence before the appeal is scheduled, in 
order to determine if pre-hearing investigation is called for. Under the new 
process, the three week date no longer applies to new medical evidence. Only 
updates of existing medical evidence which relate to the period after the HAF 
is filed may be sent after the filing of the HAF. 

The Intake Department is also primarily responsible for the Tribunal's 
"special section" cases. The special section cases include section 71 access to 
worker file cases, section 23 employer requests for medical examination and 
section 17 cases on the right to maintain civil actions for damages. 

The Intake Department is headed by the Intake Manager. 



25 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



Case Description Writers 

Case Description Writers are responsible for preparing all cases for hearing 
according to a standardized model and within certain time limits. 

The form of the case descriptions changed in 1994. The case description 
writer no longer prepares a detailed outline and history of the case, except in 
the most complex cases. The change has allowed the department to keep up 
with its increasing caseload. 

The Case Description Group works under the supervision of a senior TCO 
lawyer. 



Pre-hearing Legal Workers 

When the case description is complete, the case is scheduled and transferred 
either to a legal worker or to a lawyer. Over 90 per cent of cases are handled by 
legal workers. These legal workers deal with matters that arise pre-hearing and 
provide assistance to the parties if there are questions respecting the 
preparation of the cases. 

The Pre-hearing Legal Workers are headed by the Manager of the 
Pre-hearing Group. 



Lawyers 

Lawyers handle a small number of the most complex cases, involving novel 
legal issues or issues which have been identified as involving a significant 
Tribunal interest. 

With the permission of the hearing panel, lawyers may attend hearings to 
cross-question witnesses or may provide the panel with evidence, usually in 
the form of expert evidence from one of the Tribunal's medical assessors. The 
purpose of these functions is to ensure that there is an adequate record before 
the panel. Lawyers may also make submissions on matters of law either by way 
of written submissions or orally at the hearing, when this is requested by the 
hearing panel. However, TCO lawyers do not make submissions on issues of 
fact and all submissions are presented in as neutral a manner as possible. 

Lawyers also provide assistance to legal workers and supervise many of the 
functions carried out by legal workers. 

The most significant new legal issues in 1994 related to the complexities of 
the 1989 legislative changes, under Bill 162 [the Workers' Compensation 
Amendment Act, 1989, S.O. 1989, c. 47], which are now beginning to reach the 
Tribunal, and the complex interrelationship of the issues arismg from the NEL, 
FEL and vocational rehabilitation provisions. Cases related to reinstatement, 



26 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



stress, industrial disease and the Canadian Charter of Rights and Freedoms also 
continued to be important. 

TCO lawyers also handle applications for judicial review and other 
court-related matters. 

In 1994, there were five lawyers in TCO, reporting to the General Counsel, 
as well as one articling student. 



Post-hearing Legal Workers 

When a panel identifies that additional information is required after a 
hearing, a request is made to the post-hearing legal workers, who co-ordinate 
this continuing investigation. 

The Post-hearing Legal Workers are headed by the Senior Legal Worker, 
Post-hearing. 



Medical Liaison Office 

The Medical Liaison Office (MLO) co-ordinates and oversees all of the 
Tribunal's interactions with the medical community and facilitates the 
Tribunal's use and understanding of medical evidence. 

Because the Tribunal has an interest in ensuring that hearing panels have 
sufficient and appropriate medical evidence on which to base decisions, all case 
descriptions are reviewed by MLO for the purpose of identifying those cases in 
which the medical issues may be problematic, complex or novel to the Tribunal. 
Those cases selected from this process are referred to the Tribunal's Medical 
Counsellors to check that the medical assessment of the worker's injury is 
complete and that the record contains opinions from appropriate experts when 
required, and to attempt to ensure that questions or concerns about the medical 
issues that may need clarification for the hearing panel are identified. 

At the pre-hearing stage, counsellors may recommend getting more 
information from the patient's treating physician(s). In addition, counsellors 
may recommend obtaining a Medical Assessor's opinion if the diagnosis of the 
worker's condition is unclear, or if there is a complex medical problem that 
needs explanation, or if there is an obvious difference of opinion between 
qualified experts. 

Because of the increasing caseload at the Tribunal, an effort was commenced 
in 1994 to identify more of the medical investigation required pre-hearing. The 
new process flows from the introduction of the new Hearing Application Form, 
which facilitates this greater scrutiny. 

At the post-hearing stage, panels requesting further medical investigation 
may request the assistance of MLO in preparing specific questions that may be 



27 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



helpful in resolving medical issues that are troubling to the panel. Counsellors 
assist MLO in providing additional questions for the hearing panel's 
consideration. 

MLO also co-ordinates the Tribunal's medical audit of decisions. The audit 
provides the Medical Counsellors' professional perspective on the manner in 
which medical facts or theory were treated or recorded in Tribunal decisions. 
The audit permits the Tribunal to evaluate its processes and practices as they 
relate to medical issues and medical evidence, and to further educate Tribunal 
members and staff through medical education initiatives. 

MLO continues to place, in the Tribunal's Library, medical reports and 
transcripts of Tribunal experts on medical/ scientific issues that contain 
information which may be useful in future appeals. These reports and 
transcripts have been anonymized and literature cited in the reports has been 
placed in the Library's vertical file. This collection of medical reports specific to 
issues that arise in the workers' compensation field is unique within the Ontario 
workers' compensation system and is accessible to the public. Discussion 
papers, prepared by the Tribunal's Medical Counsellors or Medical Assessors 
on general medical topics that frequently arise in compensation matters, are 
also available in the Library. 

The MLO Group is headed by the MLO Manager. 



INFORMATION DEPARTMENT 

Library Activities 

The Library is responsible for providing information services to Tribunal 
staff and Members as well as other parties involved in workers' compensation 
issues, including individuals considering making an appeal, lawyers and 
representatives, researchers and students. 

The Collection 

The Library's collection includes books, government documents, law 
reports, loose-leaf services, policy manuals, legislation and periodicals. All 
WCAT decisions are available as well. 

Access to the collection is gained through a number of in-house databases: 

• DDS on Disk - the database of WCAT decision summaries 

• Bibliographic databases - which provide references to items held in the 
Library such as books, articles, book chapters, WCB policy papers, and 
WCAT documents. 



28 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



Reference Services 

In Person 

A reference librarian is available to provide assistance to both internal and 
external users. The Library is open to the public and no appointment is 
necessary. Hours are 9-5, Monday to Friday. 

By Telephone 

Reference service is available to non-WCAT users living outside the 
Toronto area. After a reference interview, a librarian will search the relevant 
in-house databases and forward a printout of the resulting decision summaries 
or bibliographic citations. While a telephone reference service has always been 
available to external users, in 1994 this service was formalised by in voicing users 
for printouts. Charges vary by means of delivery but are meant to recover the 
cost of copies and delivery only. 

Software Upgrade 

In 1994 the database software used in the Library and Publications 
Department, Cardbox-Plus™, was upgraded to the network Windows™ 
version. 

The process of converting various databases began first with the decision 
summaries database which was followed by the bibliographic databases. 
Databases used for serials control and acquisitions are to be converted in 1995. 

A training programme and documentation were developed in anticipation 
of training Tribunal Members and staff in the new system. 

Despite the usual problems when upgrading to a different platform, the 
transfer went smoothly and impressions of the Windows software are generally 
positive. 

Distribution of WCAT Documents 

While the Publications Department is primarily responsible for the 
distribution of WCAT publications, there are some other items that are 
distributed through the Library. 

WCAT Medical Reports 

An item about the medical research collection and in particular WCAT 
Medical Reports appeared in WCAT in Focus, Vol. 5, No. 4. A list of publicly 
available, anonymized Medical Reports was prepared by the Library and 
distributed by the Publications Department. The Library provides photocopies 
of requested reports for a nominal fee. 



29 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



Video 

The video Final Appeal - a demonstration of a WCAT hearing - may be 
borrowed from the Library. In 1994, a lending system requiring a $10 refundable 
deposit was implemented. This has led to a better return rate, though a lower 
lending rate. 

Acquisitions and Database Growth 

During 1994 the following items were added to the collection: 

• Books and government documents (indexed in "Books" database) - 160 

• Case law (indexed in "Juris" database) - 165 

• Periodical articles, WCB documents (indexed in "Library" database) - 
1056. 

As well, 395 items were acquired through the Library's ILL and document 
delivery services. 

Publications 

Accomplishments 

In 1994 the Publications Department brought production of the W.C.A.T. 
Reporter totally in-house. The Reporter previously was published in conjunction 
with Carswell. The result has been a significant saving in costs to the Tribunal 
while still producing a high-quality, full-text reporting series. 

The WCAT Online full-text database of the Tribunal's decisions was 
successfully transferred from Southam Electronic Publishing's "Private File 
Service" to Southam's Infomart Online. This has made WCAT Online part of a 
wide-ranging collec tion of legal, news and business-oriented databases and also 
has led to substantial savings to the Tribunal. 

For the Decision Digest Service (DDS) binders, the Publications Department 
has produced a new cumulative Keyword Index which is housed in the 
Cumulative Index Binder. Previously, researchers had to search two separate 
keyword indexes, one covering decisions up to March 1988 and the other 
covering all subsequent decisions. These two indexes used different keyword 
terms. The new cumulative Keyword Index uses one set of keywords - the same 
one that has been used for the post-March 1988 decisions - and covers all 
Tribunal decisions, from the inception of the Tribunal until the closing of Digest 
Binder No. 3 (in May 1994). Therefore, researchers now only have to search one 
cumulative Keyword Index in the Cumulative Index Binder, using one set of 
keyword terms. Although the new cumulative Keyword Index covers all Tribunal 
decisions, summaries for the decisions released before 1990 still are not included 



30 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



in the DDS binders, but see the " Proposals" section below for information about 
a project now underway to remedy this. 

The Publications Department has revised the Index to Section 1 7 Cases, in the 
DDS binders, in order to expand its scope and to make it easier to use. 
Previously, the Section 17 Index had its own format and set of keyword terms. 
The Section 17 Index now has the same format as the rest of the DDS and uses 
the same keyword terms as are used to classify Tribunal decisions in other 
Tribunal publications and databases. The Section 17 Index now covers a broader 
range of decisions. It includes Tribunal decisions that did not arise from s. 17 
applications but nevertheless deal with issues relevant to s. 17 applications. 

Proposals 

The DDS On Disk, which is available for public searching in the Tribunal's 
Library, was upgraded to use Cardbox for Windows™ software. However, for 
subscribers to the DDS On Disk, we currently only offer the DOS version of 
Cardbox. We are looking into making the Cardbox for Windows version of the 
DDS On Disk available to subscribers. 

The Decision Digest Service (DDS) binders started up in January 1990 and do 
not include summaries for earlier decisions (although the Master List and 
Keyword Index do cover all prior decisions). Summaries for most prior decisions 
appear in the Numerical Index. A long-term project is under way that involves: 
writing summaries for a group of Tribunal decisions that were keyworded but 
not summarized; re-keywording older decisions so that all decisions now are 
classified using the current set of keyword terms; re-formatting the material 
currently in the Numerical Index to match the material in the DDS binders; and 
integrating this material into the DDS as supplementary binders. 



SYSTEMS DEPARTMENT 

The key issues that the Systems Department dealt with in 1994 were: the 
ongoing performance problem of its computer system, and planning for the 
integration of applications on its PC-based Local Area Network. The solution 
for both issues was to renegotiate the existing lease with Digital Equipment 
Corp. and to replace the existing equipment with newer, more efficient, 
equipment that would enable the Tribunal to utilize the computers more 
effectively. 

In 1991 the Tribunal negotiated a computer system upgrade replacing its 
existing VAX computer system with a VAX4000 - Model 300. This VAX4000 was 
designed to handle the Digital All-In-1 office automation system and perform as 
the server in a PC network configuration. This would allow use of the 
VAX4000 - Model 300 to run the Tribunal's PC applications, including its 
case- tracking system. In fact, implementation of the case tracking system led to 
an unacceptable degradation in the performance of the VAX. Multiple 



31 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



discussions with technical service staff from Digital led to the confirmation that 
the VAX4000 - Model 300 could not efficientiy run both ALL-In-1 and PC 
applications given the number of users connected to the computer system. 

Discussions with Digital Equipment Corp. led to the installation of a new 
LAN server on a loan of product basis. Migrating the PC applications to a 
separate server was an attempt to resolve the VAX performance problems. This 
new server was configured using Microsoft OS/2 as the operating system and 
LAN MANAGER for OS/2 as the Network Operating System. Digital's 
consulting staff gave us significant support in attempts to make this solution 
work, but some set-up and system difficulties remained unresolvable. Finally 
we concluded that we should renegotiate the existing lease to acquire a more 
appropriate configuration for our computer system requirements, and were 
able to do so within the existing budget. 

The renegotiation of the lease gave us an opportunity to acquire additional, 
appropriately configured, microcomputers and replace those we owned that 
were obsolete or inadequate. This also provided us with the hardware resources 
necessary to implement our 1991 business case projects and proceed with our 
technology plan. (Where possible equipment that can still be used efficiently 
will be transferred to a user whose applications do not yet require a higher 
performance computer.) 

It is important to acknowledge that the majority of our existing 
microcomputer equipment had reached the end of its useful technological life 
span. With Windows as our standard environment, the majority of this 
equipment could not handle existing software and applications at acceptable 
response times, if at all. Enhancements to software that we are currently using 
or plan to use, require faster CPUs with sufficient memory and disk space. 

By August, we began to install and implement our new Microcomputer 
environment and by December our new Windows NT servers were operational. 
The Tribunal's staff is being trained in-house in the use of Windows, and we 
are progressing with plans to replace the All-ln-1 Office Automation package 
on the VAX. One of the key terms in the lease allows the Tribunal to keep the 
VAX4000 - Model 300, for at least one year from the signing of the new lease. 
This will allow sufficient time to train the Tribunal staff and convert the 
documents they use to a new Windows-based word processing and mail 
package. 

The final project completed in 1994 was the selection of a Windows-based 
word processing package to replace the All-In-1 W PS-Plus word processing 
package. We consulted with our established user base to obtain their input in 
the selection of these packages, and with the assistance of about 25 users 
completed an evaluation and selected Microsoft's Word for Windows as our 
new Windows word processing package. The software licenses were ordered 
and implementation will begin in the first quarter of 1995. 



32 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



In 1995 we plan to select a new Windows-based mail package, upgrade 
software as required and implement a fully functional support management 
software package to assist in the use and support of our new network. If all 
plans go according to schedule, the VAX4000 - Model 300 will be shut down 
and disconnected in July 1995 for removal by the end of that month. 



STATISTICAL SUMMARY 

This statistical report represents a detailed summary of the Tribunal's 
recent production and case inventory trends. The summary begins with an 
accounting of the numbers and types of cases received by year. This is followed 
by a section providing the numbers and types of cases closed. A third section 
details the current caseload (the cumulative difference between cases received 
and cases closed) - referred to sometimes in this report as "inventory" of cases. 
In the fourth section we discuss typical overall case completion times. The two 
key production measures, hearings and decisions, are then examined in detail. 
Hearings representation profiles are presented regionally for workers and for 
employers, and the decisions and hearings counts are tabulated. 

Cases Received 

The 1994 incoming caseload was the highest ever experienced by the 
Tribunal (Figures 1 and 2, pp. 37-38). The 1994 total (2,197) was higher even 
than the record that was set the year before, and it represented a continuation 
of the increasing trend that had begun in 1991. The 1994 total represented an 
increase of 2.1 % over the 1993 total, a 21.8% increase over the 1992 total, a 40.8% 
increase over the 1991 total and a 44.6% increase over the 1990 total. 

Examining the appeal types separately, we note that the incoming caseload 
increase was most notable in the area of the Tribunal's core business, the 
"entitlement" category, where the workload per case is most substantial. (Since 
1991, when the case load increase began, the number of cases received in this 
principal category each year has increased by 70% (from 865 in 1991 to 1,467 in 
1994).) The proportion of entitlement cases to the total intake has increased since 
1991 from 55% to 67%. 

For a few specific types, the incoming level was about equal to the 1993 level 
(including leave applications, medical exam cases, and commutation issues) 
and for some others (including right to sue, access issues and pension appeals) 
the numbers were decreased slightly from the 1993 levels. Post-decision cases 
(Ombudsman's investigations, judicial reviews, and requests to reconsider 
earlier Tribunal rulings) represent a small portion of the total caseload, but it is 
interesting to note that despite the general increasing trend, these post-decision 
issues had become less numerous. 



33 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



Cases Closed 

In 1994, the Tribunal closed 1,792 cases (Figure 3, p. 39). This number 
represented a slight decrease (3.9%) from the total number of cases closed in 
1993. (Against the 1992 total, it represented a 7.7% increase, and against the 
1991 total, an increase of 0.9% .) 

Entitlement-related cases (including benefits entitiement, as well as 
employer assessments, reinstatement and vocational rehabilitation obligations) 
represented 58 per cent of the cases closed in 1994, special section appeals 
accounted for 36 per cent, and post-decision cases for 6 per cent. 

Final decisions were issued in just under half (48%) of the cases closed in 
1994 (Figure 4, p. 40). Of those closed without final decisions, most (37% of all 
cases closed in 1994) were withdrawn. Other dispositions included a finding 
that the Tribunal did not have jurisdiction (5% of all cases closed in 1994), case 
abandonments (5%) and other miscellaneous case setdements (4%). 

The distribution for these dispositions varied by appeal type. For the main 
group (entitlement-related appeals), 63 per cent were disposed by final 
decision. (The remainder were withdrawn (19%), deemed non-jurisdictional 
(9%), or abandoned/ other (9%).) 



Remaining Inventory 

The rising trend in the Tribunal's incoming caseload began in 1991. The 
increase for 1991 was relatively minor, and thatyear,theTribunal closed 216cases 
more than it opened. In 1 992, the incoming caseload increased more sharply, but 
the Tribunal's production (case closings) did not keep pace. As a result, the 
inventory grew by 140 cases. In 1993, the mcoming caseload rose to 
unprecedented levels, and although the production also rose to near peak levels, 
the inventory nonetheless expanded by another 286 cases. In 1994 the incoming 
caseload was increased even slightly above the previous year's record level, while 
production edged slightly lower. By December 31, 1994, the total inventory had 
climbed by another 405 cases to 2,152 cases (Refer to Figure 5, p. 41). 

This total inventory was divided into three groups: appeals active at the 
Tribunal, appeals inactive at the Tribunal, and post-decision issue cases. Of the 
'inactive' appeals, 331 were at the preliminary intake stage (waiting for 
applications to be completed). Another 324 cases were inactive pending their 
hearing date. (These cases had been scheduled but could not proceed until the 
hearing date arrived.) Of the 1,384 'active' appeals, 41 were awaiting 
assignment to pre-hearing officers who would gather the facts of the case and 
prepare case descriptions. One hundred and thirty-six were in the case 
description process and another 107 were at other pre-hearing stages. One 
hundred and eighty-six were in the scheduling work load. There were 915 cases 
at post-hearing stages, of which 329 were formally assigned for Tribunal 
follow-up in the post-hearing department. (Typically these cases were 
adjourned with panels requesting further medical evidence.) Five hundred and 



34 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



seventy-two cases were at decision-writing stages, and 14 were all but closed 
formally. The remaining 113 cases in inventory related to post-decision issue 
requests, where the Tribunal was being asked to reconsider earlier rulings (69 
cases), or where there was an Ombudsman's investigation (34) or judicial 
review application (10) underway (Figure 6, p. 42). 

Case Completion Times 

The overall median time required to close cases in 1994 was about 6.9 
months (207 calendar days). (Refer to Figure 7, p. 42) Forty-six per cent of the 
completed cases were resolved within 6 months and 27 per cent were completed 
between 6 and 12 months. Thus nearly three-quarters were completed within 
a one-year time frame. Thirteen per cent took between 12 and 18 months, and 
the remaining 14 per cent required more than 18 months. (Refer to Figure 8, 
p. 43) The relevant proportions of cases completed within these same time 
intervals in 1992 and 1993 are also given in Figure 8. 



Hearings and Decisions 

Hearings 

In 1994, 1,299 cases went to hearing (or were assigned to Tribunal panels 
for deliberations). Some of these cases were heard (or assigned) more than 
once, resulting in a total of 1,415 hearings. In order to achieve the 1,415 
hearings, 1,697 scheduling dates had to be arranged. (On occasion, hearings 
have to be rescheduled due to illnesses or other unavoidable conflicts.) (Refer 
to Figure 9, p. 43) 

Formal oral hearings accounted for 87 per cent of the hearings in 1994. 
Another 7 per cent of hearings were accounted for by panel reviews of written 
submissions and other panel caucuses, and the remaining 6 per cent were 
accounted for by panel deliberations regarding requests to reconsider previous 
Tribunal decisions. 

The Tribunal's formal hearings involve a tripartite Tribunal panel (with a 
Vice-Chair, a Member Representative of Employers and a Member 
Representative of Workers) and parties are usually also accompanied by 
representatives. 

Representation at Hearings 

By examining the data associated with parties and appellants participating 
in the appeals, we see that employers chose to be represented most often by 
lawyers (approximately 41 % of the time). The next most frequent choice was 
representation by company personnel (20% ), followed by consultants (1 7% ) and 
by the Office of the Employer Adviser (16%). 'Other' types combined for 
2 per cent, and the choices were unknown (i.e., not recorded in the database) 
approximately 5 per cent of the time. 



35 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



Workers chose the Office of the Worker Adviser (OWA) most commonly 
(approximately 26% of the time), followed by lawyers and legal assistants 
(approximately 22% of the time), unions (15%), and consultants (12%). 'Other' 
types combined for 17 per cent, and the choice was unrecorded approximately 
9 per cent of the time. 

When this data is examined by region as in Figure 10 (p. 44), we note some 
interesting differences. We note, for example, that in the Northern region, the 
Office of the Worker Adviser acted as a representative for workers in 
approximately 50 per cent of the cases, but it had only a 13 per cent share of the 
worker representation in the Eastern region. Unions represented workers 24 
per cent of the time in the Northern region, compared with only 6 per cent in 
the Eastern region. For employer representation, we note the strong 
representation by lawyers in the Eastern region and by the Office of the 
Employer Adviser in the Northern region. 

Decisions 

In 1994, 862 cases were closed by decision. This represents an increase over 
the 1993 total. (Eight hundred and thirty-nine cases were closed by decision in 
1993.) Some of these cases involved more than one decision, (occasionally 
interim issues first had to be resolved) and in 1994 the total number of decisions 
reached 1,031 . (This also represents an increase from the 1993 figures, hi 1993, 
907 decisions were issued.) The breakdown by appeal type is given in Figure 
9 and by decision type in Figure 11 (p. 45). Most of the decisions (869 in 1994) 
represented final ridings (811 final appeal rulings in 1994 and 58 final rulings 
on reconsideration matters in 1994). However, there were also 162 interim 
decisions (156 interim rulings on appeal matters, and 6 interim rulings on 
reconsideration matters). 



FINANCIAL MATTERS 

The Statement of Expenditure and Variance Report for the year ended 
December 31, 1994, is included in this report. (See Figure 12, p. 45) 

The accounting firm of Deloitte & Touche has completed a financial audit on 
the Tribunal's financial statements for the periods ending December 31, 1993, 
and December 31, 1994. The audit reports are included in this report as 
Appendix B. 



36 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



FIGURE 1 

Annual Breakdown of Incoming Cases 





















TOTAL*** 




1991 


1992 


1993 


1994 


(All Years) 


TYPE 


No. 


(%) 


No. 


(%) 


No. 


(%) 


No. 


(%) 


No. 


{%! 


Leave 


31 


2 


35 


2 


13 


1 


17 


1 


741 


4 


Right to Sue 


127 


8 


124 


7 


113 


5 


49 


2 


967 


6 


Medical Exam 


65 


4 


76 


4 


49 


2 


41 


2 


572 


3 


Access 


318 


20 


370 


21 


511 


24 


506 


23 


3077 


18 


Special Section subtotal 


541 


35 


605 


34 


686 


32 


613 


28 


5357 


31 


Pension 


2 





58 


3 


84 


4 


32 


1 


744 


4 


N.E.L./F.E.L. * 








3 





13 


1 


34 


2 


50 





Commutation 


6 





26 


1 


36 


2 


35 


2 


220 


1 


Employer Assessment 


6 





25 


1 


26 


1 


58 


3 


257 


1 


Entitlement and preliminary 


788 


51 


816 


45 


987 


46 


1103 


50 


8434 


49 


Reinstatement 


31 


2 


39 


2 


49 


2 


56 


3 


176 


1 


Vocational Rehabilitation ** 


1 





19 


1 


72 


3 


80 


4 


172 


1 


No Jurisdiction 


31 


2 


101 


6 


75 


3 


69 


3 


695 


4 


Entitlement subtotal 


865 


55 


1087 


60 


1342 


62 


1467 


67 


10748 


62 


Judicial Review 


4 





7 





9 





8 





53 





Ombudsman 


65 


4 


44 


2 


50 


2 


35 


2 


539 


3 


Reconsideration 


85 


5 


61 


3 


64 


3 


74 


3 


616 


4 


Clarification 


























4 





Post-decision subtotal 


154 


10 


112 


6 


123 


6 


117 


5 


1212 


7 


TOTAL INCOMING 


1560 




1804 




2151 




2197 




17317 





Note: This category represents appeals related to non-economic loss and future 

economic loss pension criteria introduced by Bill 162. 

Note: This category represents appeals related to the increased Vocational 

Rehabilitation requirements introduced by Bill 162. 

Note: The TOTAL (All Years) category represents all cases, including those received 

prior to January 1, 1991. 



37 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



FIGURE 2 

Incoming Cases in 1994 by Type 



POST-DECISION ISSUE 5% 




SPECIAL SECTION 28% 



ENTITLEMENT 67% 



Post-decision issues include reconsideration applications, 

Ombudsman's inquiries and judicial review cases. 

Entitlement includes other related issues and no-jurisdiction cases. 



38 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



FIGURE 3 

Annual Breakdoivn of Cases Closed 





















TOTAL 


*** 




1991 


1992 


1993 


1994 


(All Ye 


ars) 


TYPE 


No. 


(%) 


No. 


(%) 


No. 


(%) 


No. 


(%) 


No. 


(%) 


Leave 


55 


3 


29 


2 


31 


2 


15 


1 


726 


5 


Right to Sue 


108 


6 


113 


7 


101 


5 


84 


5 


883 


6 


Medical Exam 


66 


4 


70 


4 


54 


3 


40 


2 


554 


4 


Access 


313 


18 


389 


23 


522 


28 


499 


28 


2987 


20 


Special Section subtotal 


542 


31 


601 


36 


708 


38 


638 


36 


5150 


34 


Pension 


172 


10 


50 


3 


63 


3 


49 


3 


673 


4 


N.E.L/F.E.L * 








1 





3 





12 


1 


16 





Commutation 


10 


1 


10 


1 


26 


1 


34 


2 


188 


1 


Employer Assessment 


22 


1 


24 


1 


18 


1 


22 


1 


191 


1 


Entitlement 


792 


45 


729 


44 


794 


43 


770 


43 


6977 


46 


Reinstatement 


4 





31 


2 


34 


2 


28 


2 


97 


1 


No Jurisdiction 


38 


2 


89 


5 


76 


4 


79 


4 


693 


5 


Vocational Rehabilitation ** 





g 


5 





25 


1 


52 


3 


82 


1 


Entitlement subtotal 


1038 


58 


939 


56 


1039 


56 


1046 


58 


8917 


59 


Judicial Review 


8 





4 





15 


1 


3 





43 





Ombudsman 


112 


6 


53 


3 


42 


2 


42 


2 


505 


3 


Reconsideration 


76 


4 


67 


4 


61 


3 


63 


4 


547 


4 


Clarification 


























4 





Post-decision subtotal 


196 


11 


124 


7 


118 


6 


108 


6 


1099 


7 


TOTAL CLOSED 


1776 




1664 




1865 




1792 




15166 





Note: This category represents appeals related to the non-economic loss and future 

economic loss pension criteria introduced by Bill 162. 

Note: This category represents appeals related to the increased Vocational 

Rehabilitation requirements introduced by Bill 162. 

Note: The TOTAL (All Years) represents all cases, including those closed prior 

to January 1, 1990. 



39 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



FIGURE 4 

2994 Case Closing Dispositions 



WITHDRAWN 37% 




NON-JURISDICTIONAL 5% 

OTHER 3% 
ABANDONED 5% 
SETTLED 1% 



FINAL DECISION 48% 



40 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



FIGURE 5 

Incoming and Completed Cases 



3000 



2500 



2000 



1500 



1000 



500 





* 
» 








1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 



RECEIVED CLOSED INVENTORY 

TOTAL TOTAL (Remaining Cases) 



41 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



FIGURE 6 

Status of Open Cases 



A) INACTIVE CASES 

Intake: Awaiting case information 331 

Pre-hearing: Hearing scheduled and pending 324 655 

B) ACTIVE CASES 

Pre-hearing assignment 41 

Case description writing 136 

Pre-scheduling 107 

Scheduling 186 

Post-hearing 329 

Decision writing in progress 572 
File closing 14 1384 

C) POST-DECISION ISSUES 

Ombudsman review cases 34 

Requests for reconsideration 69 

Judicial review 10 113 



TOTAL AS AT DECEMBER 31, 1994 2152 



FIGURE 7 

Aging Analysis for Closed Cases 





Closed 


Closed 


Closed 


APPEAL TYPE 


in 1992 


in 1993 


in 1994 




(median) 


(median) 


(median) 


Medical Exam and Access 


94 


48 


47 


Right to Sue 


236 


293 


325 


Entitlement-related 


264 


273 


306 


Post-decision issues 


204 


189 


214 


ALL CASES 


201 


170 


207 



42 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



FIGURE 8 

Distribution of completion times 













PERCENTAGE OF CASES COMPLETED 










Within 6 Mo 


nths 


6 to 12 Months 


12 to 18 M 


onths 


More 


than 18 Months 






1994 


1993 


1992 


1994 1993 1992 


1994 


1993 1992 


1994 


1993 


1992 


Right to Sue 




23 


28 


38 


32 33 


38 


27 


20 


13 


18 


18 


11 


Med Exam and Access 




91 


93 


78 


7 6 


20 


1 


1 


1 


1 





2 


Entitlement-related 




26 


34 


31 


36 31 


33 


18 


17 


15 


20 


19 


21 


Post-decision Issues 




40 


44 


43 


40 32 


36 


9 


6 


10 


11 


18 


10 


ALL CASES 




46 


52 


45 


27 23 


30 


13 


11 


11 


14 


13 


14 


* Note: The 'entitlement- 


related' 


categ 


ory refers to entitlement a 


ppeals, I 


eave 


applications, reinstatement 


appeals, employer 


assessment 


appec 


lis, pension and wa 


ge loss 


appeals 


and 


pension 


commutation 


issues. 



FIGURE 9 

1994 Scheduling, Hearings and Decisions 



SCHEDULING 

DATES 
ARRANGED 




HEARINGS* 




CASES 
HEARD 


DECISIONS** 
ISSUED 


CASES 

DISPOSED BY 

DECISION** 


Right to sue 77 




84 




69 


65 


62 


Medical exam 29 




18 




15 


18 


17 


Access 64 




62 




62 


67 


64 


Leave to appeal 17 




16 




15 


11 


10 


Entitlement/Other 1420 




1145 




1061 


806 


660 


Reconsideration 90 




90 




77 


64 


49 


TOTAL 1697 




1415 




1299 


1031 


862 


* Note: Hearings include oral hearings, 


written submissions 


and panel 


assignments for reconsideration 


requests. 
** Note: Decision types include Final, Interi 


m and Recons 


deration. 







43 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



FIGURE 10 

Tribunal Hearings Representation Profile 



Type of Representation by Region 





Eastern 


Northern 


Southern 


Toronto 


TOTAL 




(%) 


(%) 


(%) 


(%) 


(%) 


EMPLOYER PARTICIPATING 












Company Personnel 


13 


21 


17 


21 


20 


Consultant 





7 


25 


17 


17 


Lawyer 


75 


29 


29 


41 


41 


No Representation 








8 


5 


5 


Office of the Employer Adviser 


13 


43 


17 


14 


16 


Other 








4 


2 


2 




Eastern 


Northern 


Southern 


Toronto 


TOTAL 




(%) 


(%) 


(%) 


(%) 


(%) 


WORKER PARTICIPATING 












Consultant 





2 


12 


14 


12 


Lawyer or legal aid/asst. 


47 


13 


20 


22 


22 


No Representation 


6 


4 


11 


10 


9 


Office of the Worker Adviser 


13 


50 


18 


23 


26 


Other 


28 


7 


17 


18 


17 


Union 


6 


24 


22 


13 


15 



NOTES: 

1) The overall representation proportions are most similar to the Toronto proportions because 
most hearings were conducted there. 

2) The Eastern region is represented by WCAT hearings in Ottawa, the Northern region by 
Sault Ste. Marie, Sudbury, Timmins, and Thunder Bay hearings, and the Southern region by 
London and Windsor hearings. 

3) The columns may not sum to 100 due to the rounding factor. 



44 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



FIGURE 11 

Decisions Issued by Decision Type 



APPEAL ISSUES 


1992 


1993 


1994 


Interim 


100 


123 


156 


Final 

Subtotal 


904 
1,004 


720 
843 


811 
967 


RECONSIDERATION ISSUES 








Interim 


10 


6 


6 


Final 


60 


58 


58 


Subtotal 


70 


64 


64 


TOTAL 


1074 


907 


1031 



FIGURE 12 

Statement of Expenditures and Variance 



WORKERS' COMPENSATION APPEALS TRIBUNAL 








1994 STATEMENT OF EXPENDITURES AND VARIANCE 








As at December 31, 1994 (in $000's) 












1994 


1994 


VARIANCE 


Salaries b Wages 


BUDGET 


ACTUAL 


$ 


% 


6845.0 


6461.0 


384.0 


5.61 


Employee Benefits 


1100.0 


1086.0 


14.0 


1.27 


Transportation & Communications 


397.0 


396.0 


1.0 


0.25 


Services 


2932.0 


2796.0 


136.0 


4.64 


Supplies & Equipment 


245.0 


253.0 


(8.0) 


(3.27) 


TOTAL OPERATING EXPENDITURES 


11519.0 


10992.0 


527.0 


4.58 


Capital Expenditures 


180.0 


40.0 


140.0 


77.78 


Social Contract Commitment 


158.0 


328.0 


(170.0) 


(107.59) 


TOTAL EXPENDITURES 


11857.0 


11360.0 


497.0 


4.19 



45 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



APPENDIX A 



VICE-CHAIRS AND MEMBERS IN 1994 

This is a list of Vice-Chairs and Members whose Order-in-Council 
appointments were active during the reporting period. The date given is the 
date of each appointee's first appointment in his or her current capacity. 
Individuals may have been active at the Tribunal under other appointments 
prior to the date indicated. 



Full-time 



Date of First Appointment 



Chair 

Ellis, S. Ronald 



October 1, 1985 



Alternate Chair 
Onen, Zeynep 



October 1, 1988 (as Vice-Chair) 
August 1, 1993 (as Alternate Chair) 



Vice-Chairs 

Bigras, Jean Guy 
Cook, Brian L. 
Frazee, Catherine 
Kenny, Lila Maureen 
McCombie, Nick 
Mclntosh-Janis, Faye 
Moore, John P. 
Newman, Elaine 
Sandomirsky, Janice R. 
Signoroni, Antonio 
Strachan, Ian 



December 17, 1987 
September 6, 1991 
September 3, 1992 
July 29, 1987 
January 22, 1991 
May 14, 1986 
May 1, 1988 
February 1, 1991 
July 3, 1990 
October 1, 1985 
October 1, 1985 



Members Representative of Workers 



Cook, Mary 
Crocker, James A. 
Heard, Lome (on leave) 
Jackson, Faith 
Lebert, Raymond J. 
Robillard, Maurice 
Shartal, Sarah 
Thompson, Patti 



November 1, 1990 
August 1, 1991 
October 1, 1985 
November 1,1990 
June 1, 1988 
March 11, 1987 
November 1,1990 
October 9, 1991 



47 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



Members Representative of Employers 

Apsey, Robert 
Barbeau, Pauline 
Chapman, Stanley 
Copeland, Susan 
Jago, W. Douglas 
Meslin, Martin 
Nipshagen, Gerry M. 



December 11, 1985 
January 15, 1990 
July 16, 1990 
April 6, 1994 
October 1, 1985 
August 1, 1988 
June 15, 1989 



Part-time 



Vice-Chairs 

Coke, Robert A. 

Cummings, Mary Ellen* 

Faubert, Marsha 

Flanagan, William F. 

Harris, Daniel A. 

Hartman, Ruth 

Keil, Martha 

Marafioti, Victor 

McGrath, Joy 

Robeson, Virginia 

Singh, Vara P. 

Stewart, Susan J. 

Sutherland, Sara J. 

Wacyk, Tanja I.* 

* Cross-appointed pursuant to 



December 7, 1994 
June 8, 1994 
December 10, 1987 
June 1,1991 
April 15, 1991 
December 11, 1985 
February 16, 1994 
March 11, 1987 
December 10, 1987 
March 15, 1990 
June 1,1991 
May 14, 1986 
September 6, 1991 
June 8, 1994 
Pilot Project (see pp. 51-52 below) 



Members Representative of Workers 

Beattie, David Bert 
Drennan, George 
Felice, Douglas H. 
Ferrari, Mary 
Higson, Roy 
Klym, Peter 
Rao, Fortunato 



December 11, 1985 
December 11, 1985 
May 14, 1986 
May 14, 1986 
December 11, 1985 
May 14, 1986 
February 11, 1988 



Members Representative of Employers 

Copeland, Susan 
Donaldson, Joseph J. 
Fay, Carole Ann 
Howes, Gerald K. 
Robb, C. James 
Ronson, John C. 
Seguin, Jacques A. 
Shuel, Robert 



June 17, 1993 
August 4, 1994 
August 4, 1994 
August 1,1989 
June 2, 1993 
December 11, 1985 
January 1, 1990 
August 1,1989 



48 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



VICE-CHAIRS AND MEMBERS - 

EXPIRED APPOINTMENTS AND RESIGNATIONS 

The following is a list of Order-in-Council appointments who resigned or 
whose appointments expired during 1994. 

Drennan, George, Member Representative of Workers (Part-time) 



VICE-CHAIRS AND MEMBERS - REAPPOINTMENTS 



Full-time 

Chair 

Ellis, S. Ronald 

Alternate Chair 
Onen, Zeynep 

Vice-Chairs 

Cook, Brian L. 
Moore, John P. 
Newman, Elaine 
Signoroni, Antonio 
Strachan, Ian 

Members Representative of Workers 

Crocker, James A. 
Thompson, Patti 
Heard, Lome 
Leber t, Raymond J. 

Members Representative of Employers 

Apsey, Robert 
Meslin, Martin 



Date of Reappointment 



October 1,1994 



October 1, 1994 (as Vice-Chair) 



September 6, 1994 
May 1, 1994 
February 1, 1994 
October 1, 1994 
May 1, 1994 



August 1,1994 
October 9, 1994 
October 1, 1994 
May 31, 1994 



December 11, 1994 
August 1,1994 



49 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



Part-time 



Vice-Chairs 

Flanagan, William F. 
Harris, Daniel A. 
Hartman, Ruth 
Singh, Vara P. 
Sutherland, Sara J. 



June 1, 1994 
April 15, 1994 
December 11, 1994 
June 1,1994 
September 6, 1994 



Members Representative of Workers 

Beattie, David Bert 
Higson, Roy 
Rao, Fortunato 



December 11, 1994 
December 11, 1994 
February 11, 1994 



Members Representative of Employers 

Ronson, John C. 



December 11, 1994 



NEW APPOINTMENTS DURING 1994 



Robert A. Coke 

(Part-time Vice-Chair) December 7, 1994 

Mr. Coke, a Rhodes Scholar, has had seven years of senior management 
experience at the Workers' Compensation Board, first as Senior Vice-President, 
Strategic Policy and Analysis, and later as Senior Vice-President, Finance and 
Administration. Prior to that, he was Director of the Policy Branch at the 
Ministry of Labour. He came to us with an extensive background in and 
knowledge of the workers' compensation system. 



Susan Copeland 

(Full-time Member Representative of Employers) April 6, 1994 

Ms. Copeland joined the Tribunal as a part-time Member on June 23, 1993. 
On April 6, 1994, she was appointed as a full-time Member. Prior to joining the 
Tribunal, she retired from Ontario Hydro where she had been involved in the 
supervision of workers' compensation claims. She was the organizer of a 
Schedule 2 employers' group and is a former Vice-Chair of the Municipal 
Users' Group. She had been active in organizing and presenting workers' 
compensation training seminars, and has had direct advocacy experience at 
the Workers' Compensation Board and at the Tribunal. 



50 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



Joseph J. Donaldson 

(Part-time Member Representative of Employers) August 4, 1994 

Mr. Donaldson was previously employed by Procter & Gamble as a 
Human Resources Manager. In that capacity, he was the WCB Manager for all 
Canadian Procter & Gamble worksites. 



Carole Ann Fay 

(Part-time Member Representative of Employers) August 4, 1994 

Ms. Fay was formerly an Employer Adviser with the Office of the Employer 
Adviser in Windsor. Prior to that, she was the Workers' Compensation & 
Health & Safety Coordinator for the City of Windsor for two years. 



Martha Keil 

(Part-time Vice-Chair) February 16, 1994 

Ms. Keil was formerly the program coordinator at the Industrial Disease 
Standards Panel where, amongst other duties, she was responsible for project 
management of complex issues involving industrial disease, policy analysis 
and research. Prior to this, she spent 11 years with the Ombudsman Ontario, 
working primarily in the area of investigating workers' compensation 
complaints. 



CROSS-APPOINTMENTS 

In 1994, the Tribunal undertook a cross-appointments pilot project with 
the Pay Equity Hearings Tribunal and the Office of Adjudication. This pilot 
project offered each agency additional experienced adjudicators, and provided 
additional scheduling flexibility to meet statutory obligations while requiring 
limited training. 

In this connection, Janice Sandomirsky was cross-appointed to the Pay 
Equity Hearings Tribunal, and Antonio Signoroni was cross-appointed to the 
Office of Adjudication. 

The following Vice-Chairs were cross-appointed to the Tribunal. 



51 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



Mary Ellen Cummings (June 8, 1994) 

Ms. Cummings is a lawyer who has been a Vice-Chair at the Pay Equity 
Hearings Tribunal since 1989 and is fully familiar with the tripartite 
adjudication process. Prior to that, she was a labour lawyer in private practice. 



Tanja I. Wacyk (June 8, 1994) 

Ms. Wacyk is a lawyer who hears and determines appeals, references, 
applications and complaints under both the Employment Standards Act and the 
Occupational Health and Safety Act at the Office of Adjudication. Prior to this, 
she was Director of Policy & Research at the Ontario Human Rights 
Commission. 



SENIOR STAFF 

The following is a list of the senior staff who were employed at the Tribunal 
during the reporting period. 

Linda Moskovits Chief Information Officer 

Beverley Pavuls Chief Administration Officer 

Eleanor Smith Tribunal General Counsel 

Peter Taylor Manager, Financial Administration 

Carole Trethewey Counsel to the Tribunal Chair 



MEDICAL COUNSELLORS 

The following is a list of the Tribunal's Medical Counsellors. 

Dr. Douglas P. Bryce Otolaryngology 

Dr. Ross Fleming Neurosurgery 

Dr. W. Robert Harris Orthopaedic Surgery 

Dr. Frederick H. Lowy Psychiatry 

Dr. Robert L. MacMillan Internal Medicine 

Dr. John S. Speakman Ophthalmology 

Dr. Neil Watters General Surgery 

Dr. Fred Lowy, Counsellor (Psychiatry) resigned at the end of December 
1994, to pursue a sabbatical abroad. Dr. Lowy had been a medical counsellor 
from September 1987. 

The Tribunal's awareness and understanding of the psychological factors 
in disability from illness or injury was significantly enhanced by Dr. Lowy's 
regular and thoughtful contributions to continuing education events, medical 
discussion papers, pre-hearing file reviews and the medical audit process. 



52 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



APPENDIX B 



WORKERS' COMPENSATION APPEALS TRIBUNAL 

REPORT AND FINANCIAL STATEMENTS 
December 31, 1993 

Auditors' Report 

To the Workers' Compensation Appeals Tribunal 

We have audited the balance sheet of the Workers' Compensation Appeals 
Tribunal as at December 31, 1993 and the statements of expenditures and 
Workers' Compensation Board funding for the year then ended. These 
financial statements are the responsibility of the Tribunal's management. Our 
responsibility is to express an opinion on these financial statements based on 
our audit. 

We conducted our audit in accordance with generally accepted auditing 
standards. Those standards require that we plan and perform an audit to 
obtain reasonable assurance whether the financial statements are free of 
material misstatement. An audit includes examining, on a test basis, evidence 
supporting the amounts and disclosures in the financial statements. An audit 
also includes assessing the accounting principles used and significant 
estimates made by management, as well as evaluating the overall financial 
statement presentation. 

In our opinion, these financial statements present fairly, in all material 
respects, the financial position of the Workers' Compensation Appeals 
Tribunal as at December 31, 1993 and the results of its operations and Workers' 
Compensation Board funding for the year then ended in accordance with the 
accounting policies described in Note 2 of the financial statements. 

Deloitte & Touche 
Chartered Accountants 
Toronto, Ontario 
June 9, 1994 



53 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



BALANCE SHEET 
December 31, 1993 

ASSETS 

Cash 

Receivable from Workers' Compensation Board 

Salaries and wages recoverable (Note 3) 

Advances 

LIABILITIES 

Bank indebtedness 

Accounts payable and accrued liabilities 

Operating advance from 

Workers' Compensation Board (Note 4) 



Approved on behalf of the Workers' Compensation Appeals Tribunal 
S.R. Ellis, Chairman 



1993 


1992 


$ 


$ 210,600 


2,653,100 


1,550,200 


34,400 


13,600 


15,900 


14,500 


$ 2,703,400 


$ 1,788,900 


$ 239,100 


$ 


1,064,300 


388,900 


1,400,000 


1,400,000 


$ 2,703,400 


$ 1,788,900 



STATEMENT OF EXPENDITURES 
Year ended December 31, 1993 

Salaries and wages 

Employee benefits 

Transportation and communication 

Services 

Supplies and equipment 

Social contract commitment 

Total operating expenditures 

Capital expenditures 

Total expenditures 



1993 


1992 


$ 6,460,700 


$ 6,444,500 


1,063,500 


1,080,200 


353,700 


479,800 


2,741,000 


2,671,400 


187,400 


245,900 


245,800 


- 


11,052,100 


10,921,800 


11,600 


12,100 


$11,063,700 


$ 10,933,900 



54 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



STATEMENT OF WORKER'S COMPENSATION BOARD FUNDING 
Year ended December 31, 1993 



Recoverable expenditures 

Reimbursement from Workers' Compensation Board 
Change in receivable from Workers' Compensation Board 
Receivable from Worker's Compensation Board, 
beginning of year 

Receivable from Workers' Compensation Board, 
end of year 



1993 

$ 11,063,700 
9,960,800 
1,102,900 

1,550,200 

$ 2,653,100 



1992 

$ 10,933,900 

11,123,200 

(189,300) 

1,739,500 

$ 1,550,200 



NOTES TO THE FINANCIAL STATEMENTS 
December 31, 1993 

1. General 

The Workers' Compensation Appeals Tribunal ("Tribunal") was created by the 
Workers' Compensation Amendment Act S.0. 1984, Chapter 58 - Section 32, which came 
into force on October 1, 1985. 

The purpose of the Tribunal is to hear, determine and dispose of in a fair, impartial and 
independent manner, appeals by workers and employers of decisions, orders or rulings 
of the Workers' Compensation Board, and any matters or issues expressly conferred upon 
the Tribunal by the Act. 

2. Significant Accounting Policies 

The Tribunal's financial statements are prepared in accordance with generally accepted 
accounting principles except for capital expenditures which are charged to expense in the 
year of acquisition. 

3. Salaries and Wages Recoverable 

Certain employees are on secondment with the Ministry of Community and Social 
Services of the Government of Ontario and their remuneration is recoverable. 

4. Operating Advance from Workers' Compensation Board 

The operating advance is interest-free with no specific terms of repayment. 



55 



Workers' Compensation Appeals Tribunal 
Annual Report 1994 



WORKERS' COMPENSATION APPEALS TRIBUNAL 

REPORT AND FINANCIAL STATEMENTS 
December 31, 1994 

Auditors' Report 



To the Workers' Compensation Appeals Tribunal 

We have audited the balance sheet of the Workers' Compensation Appeals 
Tribunal as at December 31, 1994 and the statements of expenditures and 
Workers' Compensation Board funding for the year then ended. These 
financial statements are the responsibility of the Tribunal's management. Our 
responsibility is to express an opinion on these financial statements based on 
our audit. 

We conducted our audit in accordance with generally accepted auditing 
standards. Those standards require that we plan and perform an audit to 
obtain reasonable assurance whether the financial statements are free of 
material misstatement. An audit includes examining, on a test basis, evidence 
supporting the amounts and disclosures in the financial statements. An audit 
also includes assessing the accounting principles used and significant 
estimates made by management, as well as evaluating the overall financial 
statement presentation. 

In our opinion, these financial statements present fairly, in all material 
respects, the financial position of the Workers' Compensation Appeals 
Tribunal as at December 31, 1994 and the results of its operations and Workers' 
Compensation Board funding for the year then ended in accordance with the 
accounting policies described in Note 2 of the financial statements. 

Deloitte & Touche 
Chartered Accountants 
Toronto, Ontario 
June 9, 1995 



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Workers' Compensation Appeals Tribunal 
Annual Report 1994 



BALANCE SHEET 
December 31, 1994 

ASSETS 

Receivable from Workers' Compensation Board 

Salaries and wages recoverable (Note 3) 

Advances 

LIABILITIES 

Bank indebtedness 

Accounts payable and accrued liabilities 

Operating advance from 

Workers' Compensation Board (Note 4) 



Approved on Behalf of the Workers' Compensation Appeals Tribunal 
S.R. Ellis, Chairman 



1994 


1993 


$ 3,051,300 


$ 2,653,100 


114,400 


34,400 


22,600 


15,900 


$ 3,188,300 


$ 2,703,400 


$ 362,900 


$ 239,100 


1,425,400 


1,064,300 


1,400,000 


1,400,000 


$ 3,188,300 


$ 2,703,400 



STATEMENT OF EXPENDITURES 
Year ended December 31, 1994 



Salaries and wages 

Employee benefits 

Transportation and communication 

Services 

Supplies and equipment 

Social contract commitment 

Total operating expenditures 

Capital expenditures 

Total expenditures 



1994 


1993 


$ 6,417,400 


$ 6,460,700 


1,086,300 


1,063,500 


395,800 


353,700 


2,891,100 


2,741,000 


252,600 


187,400 


327,700 


245,800 


11,370,900 


10,993,500 


39,600 


11,600 


$ 11,410,500 


$ 11,063,700 



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Workers' Compensation Appeals Tribunal 
Annual Report 1994 



STATEMENT OF WORKERS' COMPENSATION BOARD FUNDING 
Year ended December 31, 1994 



1994 


1993 


$ 11,410,500 


$ 11,063,700 


11,012,300 


9,960,800 


398,200 


1,102,900 


2,653,100 


1,550,200 


$ 3,051,300 


$ 2,653,100 



Recoverable expenditures 

Reimbursement from Workers' Compensation Board 
Change in Receivable from Workers' Compensation Board 
Receivable from Workers' Compensation Board, 

beginning of year 
Receivable from Workers' Compensation Board, 

end of year 



NOTES TO THE FINANCIAL STATEMENTS 
December 31, 1994 

1. General 

The Workers' Compensation Appeals Tribunal ("Tribunal") was created by the 
Workers' Compensation Amendment Act S.0. 1984, Chapter 58 - Section 32, which came 
into force on October 1, 1985. 

The purpose of the Tribunal is to hear, determine and dispose of in a fair, impartial and 
independent manner, appeals by workers and employers of decisions, orders or rulings 
of the Workers' Compensation Board, and any matters or issues expressly conferred upon 
the Tribunal by the Act. 

2. Significant Accounting Policies 

The Tribunal's financial statements are prepared in accordance with generally accepted 
accounting principles except for capital expenditures which are charged to expense in the 
year of acquisition. 

3. Salaries and Wages Recoverable 

Certain employees are on secondment with the Ministry of Community, Social Services 
of the Government of Ontario and the Society of Ontario Adjudicators and Regulators and 
their remuneration is recoverable. 

4. Operating Advance from Workers' Compensation Board 

The operating advance is interest-free with no specific terms of repayment. 



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